Beacon Lights of History, Volume XI
by
John Lord
Part 4 out of 4
men as the Adamses, the Shermans, and the Langdons,--something new in
the history of governments and empires, which was really subverted by
the doctrines of Rousseau and the leaders of the French Revolution, whom
Jefferson admired and followed.
Jefferson, however, practically believed in the aristocracy of mind, and
gave his preference to men of learning and refinement, rather than men
of wealth and rank. He was a democrat only in the recognition of the
people as the source of future political power, and hence in the belief
of the ultimate triumph of the Democratic party, which it was his work
to organize and lead. Foreseeing how dangerous the triumph of a vulgar
and ignorant mob would be, he tried to provide for educating the people,
on the same principle that we would to-day educate the colored race. The
great hobby of his life was education. He thus spent the best part of
his latter years in founding and directing the University of Virginia,
including a plan for popular education as well. To all schemes of
education he lent a willing ear; but it was the last thing which
aristocratic Southern planters desired,--the elevation of the poor
whites, or political equality. Though a planter, Jefferson was more in
sympathy with New England ideas, as to the intellectual improvement of
the people and its relation to universal suffrage, than with the
Southern gentlemen with whom he associated. Hamilton did not so much
care for the education of the people as he did for the ascendency of
those who were already educated, especially if wealthy. Property, in his
eyes, had great consideration, as with all the influential magnates of
the North. Jefferson thought more of men than of their surroundings, and
thus became popular with ordinary people in a lower stratum of social
life. Hamilton was popular only with the rich, the learned, and the
powerful, and stood no chance in the race with Jefferson for popular
favor, wherever universal suffrage was established, any more than did
John Adams, whose ideas concerning social distinctions, and the
ascendency of learning and virtue in matters of government, were
decidedly aristocratic.
It is hard to say whether Jefferson or Hamilton was the wiser in his
political theories, nor is it certain which was the more astute and
far-reaching in his calculations as to the future ascendency of
political parties. Down to the Civil War the Democrats had things
largely their own way; since then, the Republican party--lineal
descendant of the Federals, through the Whigs--have borne sway until
within very recent years, when there has developed a strong reaction
against the centralizing tendency compacted by the rallying of the
people about the government to resist disunion in 1860-65.
Jefferson became Vice-President on the final retirement of Washington to
private life in 1797, when Adams was made President. The vice-presidency
was a position of dignity rather than of power, and not so much desired
by ambitious men as the office of governor in a great State. What took
place of importance in the political field during the presidency of
Adams has already been treated. As Vice-President, Jefferson had but
little to do officially, but he was as busy as ever with his pen, and in
pulling political wires,--especially in doing all he could to obstruct
legislation along the lines laid down by the Federal leaders. Of course,
like other leaders, he was aiming at the presidency, and I think he was
the only man in our history who ever reached this high office by
persistent personal efforts to secure it. Burr failed, in spite of his
great abilities, as well as Hamilton, Calhoun, Clay, Benton, Webster,
Douglas, Seward, and Blaine. All the later presidents have been men who
when nominated as candidates for the presidency were comparatively
unknown and unimportant in the eyes of the nation,--selected not for
abilities, but as the most "available" candidates; although some of them
proved to be men of greater talent and fitness than was generally
supposed. The people accepted them, but did not select them, any more
than Saul and David were chosen by the people of Israel. Political
leaders selected them for party purposes, and rather because they were
unknown than because they were known; while greater men, who had the
national eye upon them for services and abilities, had created too many
enemies, secret or open, for successful competition. An English member
of Parliament, of transcendent talent, if superior to all other members
for eloquence, wisdom, and tact, is pretty certain of climbing to the
premiership, like Canning, Peel, Disraeli, and Gladstone. Probably no
American, for a long time to come, can reasonably hope to reach the
presidency because he has ambitiously and persistently labored for it,
whatever may be his merits or services. In a country of wide extent like
the United States, where the representatives of the people and the
States in Congress are the real rulers, perhaps this is well.
But even Jefferson did not inordinately seek or desire the presidency.
The office quite as earnestly sought him, as the most popular man in the
country, who had proved himself to be a man of great abilities in the
various positions he had previously filled, and as honest as he was
patriotic. He had few personal enemies. His enemies were the leaders of
the Federal party, if we except Aaron Burr, in whose honesty few
believed. The lies which the bitter and hostile Federalists told about
Jefferson were lost on the great majority of the people, who believed
in him.
Jefferson was inaugurated as president in 1801, and selected an able
Cabinet, with his friend and disciple James Madison as Secretary of
State, and Albert Gallatin, an experienced financier, a Swiss by birth,
as Secretary of the Treasury. He at once made important changes in all
matters of etiquette and forms, introducing greater simplicity,
abolishing levees, titles, and state ceremonials, and making himself
more accessible to the people. His hospitality was greater than that of
any preceding or succeeding president. He lived in the White House more
like a Virginian planter than a great public functionary, wearing plain
clothes, and receiving foreign ministers without the usual formalities,
much to their chagrin. He also prevailed on Congress to reduce the army
and navy, retaining a force only large enough to maintain law and order.
He set the example of removing important officers hostile to his
administration, although he did not make sweeping changes, as did
General Jackson afterward, on the avowed ground that "spoils belong to
victors,"--thus increasing the bitterness of partisanship.
The most important act of Jefferson's administration was the purchase
of Louisiana from France for fifteen millions of dollars. Bonaparte had
intended, after that great territory had been ceded to him by Spain, to
make a military colony at New Orleans, and thus control the Mississippi
and its branches; but as he wanted money, and as his ambition centred in
European conquests, he was easily won over by the American diplomatists
to forego the possession of that territory, the importance of which he
probably did not appreciate, and it became a part of the United States.
James Monroe and Robert Livingston closed the bargain with the First
Consul, and were promptly sustained by the administration, although they
had really exceeded their instructions. Bonaparte is reported to have
said of this transaction: "This accession of territory strengthens
forever the power of the United States. I have given to England a
maritime rival that will sooner or later humble her pride."
By this purchase, which Jefferson had much at heart, the United States
secured, not only millions of square miles of territory, but the control
of the Gulf of Mexico. This fortunate acquisition prevented those
entangling disputes and hostilities which would have taken place whether
Spain or France owned Louisiana. Doubtless, Jefferson laid himself open
to censure from the Federalists for assuming unconstitutional powers in
this purchase; but the greatness of the service more than balanced the
irregularity, and the ridicule and abuse from his political enemies fell
harmless. No one can question that his prompt action, whether
technically legal or illegal, was both wise and necessary; it
practically gave to the United States the undisputed possession of the
vast territory between the Mississippi and the Rocky Mountains.
Moreover, the President's enlightened encouragement of the explorations
of Lewis and Clarke's expedition across the Rocky Mountains to the
Pacific Ocean, led to the ultimate occupancy of California and the west
coast itself.
The next event of national interest connected with the administration of
Jefferson in his long term of eight years (for he was re-elected
president, and began his second term in 1805), was the enterprise of
Aaron Burr, with a view of establishing a monarchy in Mexico. It was
fortunately defeated, and the disappointed and ambitious politician
narrowly escaped being convicted of high treason. He was saved only by
the unaccountable intrigues of the Federalists at a time of intense
party warfare. Jefferson would have punished this unscrupulous intriguer
if he could; but Burr was defended by counsel of extraordinary
ability,--chiefly Federalist lawyers, at the head of whom was Luther
Martin of Maryland, probably the best lawyer in the country,
notwithstanding his dissipated habits. Martin was one of those few
drinking men whose brains are not clouded by liquor. He could argue a
case after having drunk brandy enough to intoxicate any ordinary man,
and be the brighter for it. Burr also brought to bear the resources of
his own extraordinary intellect, by way of quiet suggestions to
his counsel.
This remarkable man was born at Newark, N.J., in 1756, and was the son
of the Rev. Aaron Burr, president of Princeton College. He was a
grandson of the celebrated Jonathan Edwards, the most original and
powerful metaphysical intellect known to the religious history of this
country, who confirmed Calvinism as the creed of New England Puritans.
The young Burr, on the death of his father and grandfather, inherited
what was then considered as a fortune, and was graduated at Princeton in
1772, with no enviable reputation, being noted for his idleness and
habits bordering on dissipation. He was a handsome and sprightly young
man of sixteen, a favorite with women of all ages. He made choice of the
profession of law, and commenced the study under Tappan Reeve of
Elizabethtown. After the battle of Bunker Hill he entered the army at
Boston, but, tired of inactivity, joined Arnold's expedition to Quebec,
where he distinguished himself by his bravery. Ill-health compelled him
to leave the army after four years service,--the youngest colonel in the
army. He was no admirer of Washington, regarding him as "a farmer and
Indian-fighter rather than a soldier." He favored the cabal against him,
headed by Gates and Conway. Washington, while ready to acknowledge
Burr's military abilities, always distrusted him, and withheld from him
the rank of brigadier.
On leaving the army, at the age of twenty-three, Burr resumed his
studies of the law, and was admitted to the Albany bar after brief
preparation. Conscious of his talents, he soon after settled in New
York, and enjoyed a lucrative practice, the rival of Alexander Hamilton,
being employed with him on all important cases. He had married, in 1782,
the widow of an English officer, a Mrs. Provost, a lady older than
he,--with uncommon accomplishments. In 1784 he was chosen a member of
the New York Legislature, and was on intimate terms with the Clintons,
the Livingstons, the Van Rennselaers, and the Schuylers. In 1789 he was
made Attorney-General of the State during the administration of Governor
George Clinton. His popularity was as great as were his talents, and in
1791 he was elected to the United States Senate over General Philip
Schuyler, and became the leader of the Republican party, with increasing
popularity and influence. In 1796 he was a presidential candidate, and
in 1800, being again a candidate for the presidency, he received
seventy-three votes in the House of Representatives,--the same number
that were cast for Jefferson. He would, doubtless, have been elected
president but for the efforts of Hamilton, who threw his influence in
favor of Jefferson, Democrat as he was, as the safer man of the two.
Burr never forgave his rival at the bar for this, and henceforward the
deepest enmity rankled in his soul for the great Federalist leader.
As Vice-President, Burr was marked for his political intrigues, and
incurred the distrust if not the hostility of Jefferson, who neglected
Burr's friends and bestowed political favors on his enemies. Disgusted
with the inactivity to which his office doomed him, Burr pulled every
wire to be elected governor of New York; but the opposition of the great
Democratic families caused his defeat, which was soon followed by his
assassination of Hamilton, called a duel. Universal execration for this
hideous crime drove him for a time from New York, although he was still
Vice-President. But his political career was ended, although his
ambition was undiminished.
Then, seeing that his influence in the Eastern and Middle States was
hopelessly lost, Burr looked for a theatre of new cabals, and turned his
eyes to the West, opened to public view by the purchase of Louisiana.
In the preparation of his plans he went first to New Orleans, then a
French settlement, where he was lionized, returning by way of Nashville,
Frankfort, Lexington, and St. Louis. At the latter post he found General
Wilkinson, to whom he communicated his scheme of founding an empire in
the West,--a most desperate undertaking. On an island of the Ohio, near
Marietta, he visited its owner, called Blennerhasset, a restless and
worthless Irishman, whom he induced to follow his fortunes.
The adventurers contracted for fifteen boats and enlisted quite a number
of people to descend the Mississippi and make New Orleans their
rallying-point, supposing that the Western population were dissatisfied
with the government and were ready to secede and establish a new
republic, or empire, to include Mexico; also relying on the aid of
General Wilkinson at St. Louis. But they miscalculated: Wilkinson was
true to his colors; the people whom they had seduced gradually dropped
off; the territorial magistrates became suspicious and alarmed, and the
governor of the Territory communicated his fears to the President, who
at once issued a proclamation to arrest the supposed conspirators, who
had fled when their enterprise had failed.
Burr was seized near Natchez, and was tried for conspiracy; but the
trial came to nothing. He contrived to escape in the night, but was
again arrested in Alabama, and sent to Richmond to be tried for treason.
As has been said, he was acquitted, by a jury of which John Randolph was
foreman, with the sympathy of all the women, of whom he was a favorite
to the day of his death. The trial lasted six months, and Jefferson did
all he could to convict him, with the assistance of William Wirt, just
rising into notice.
Although acquitted, Burr was a ruined man. His day of receptions and
popularity was over. His sad but splendid career came to an inglorious
close. Feeling unsafe in his own country, he wandered abroad, at times
treated with great distinction wherever he went, but always arousing
suspicions. He was obliged to leave England, and wandered as a fugitive
from country to country, without money or real friends. At Paris and
London he suffered extreme poverty, although admired in society. At last
he returned to New York, utterly destitute, and resumed the practice of
the law, but was without social position and generally avoided. He
succeeded in 1832 in winning the hand of a wealthy widow, but he spent
her money so freely that she left him. After the separation he supported
himself with great difficulty, but retained his elegant manner and
fascinating conversation, until he died in the house of a lady friend in
1836, and was buried at Princeton by the side of his father and
grandfather.
Our history narrates no fall from an exalted position more melancholy,
or more richly deserved, than his. Without being dissipated, he was a
bad and unprincipled man from the start. He might have been the pride of
his country, like Hamilton and Jefferson, being the equal of both in
abilities, and at one time in popularity. The school-books have given to
him and to Benedict Arnold an infamous immortality, comparing the one
with Cain, and the other with Judas Iscariot.
The most important measure connected with Jefferson's long
administration was the Non-importation Act, commonly called the Embargo.
It proved in the end a mistake, and shed no glory on the fame of the
President; and yet it perhaps prevented a war, or at least delayed it.
The peace of 1783 and the acknowledgment of American independence did
not restore friendly relations between England and the United States. It
was not in human nature that a proud and powerful state like England
should see the disruption of her empire and her fairest foreign
possession torn from her without embittered feelings, leading to acts
which could not be justified by international law or by enlightened
reason. Accordingly, the government of Great Britain treated the
American envoys with rudeness, insolence, and contempt, much to their
chagrin and the indignation of Americans generally. It also adopted
measures exceedingly injurious to American commerce. France and England
being at war, the Americans, as neutrals, secured most of the carrying
trade, to the disgust of British merchants; and, declaring mutual
blockade, both French and English cruisers began to capture American
trading-ships, the English being especially outrageous in their doings.
Said Jefferson, in his annual message in 1805: "Our coasts have been
infested and our harbors watched by private armed vessels. They have
captured in the very entrance of our harbors, as well as on the high
seas, not only the vessels of our friends coming to trade with us, but
our own also. They have carried them off under pretence of legal
adjudication; but not daring to approach a court of justice, they have
plundered and sunk them by the way, or in obscure places where no
evidence could arise against them, maltreated the crews, and abandoned
them in boats in the open sea, or on desert shores without food or
covering." In view of these things, the President recommended the
building of gunboats and the reorganization of the militia, and called
attention to materials in the navy-yards for constructing battleships.
The English even went further and set up a claim to the right of search;
sailors were taken from American ships to be impressed into their naval
service, on the plea--generally unfounded--that they were British
subjects and deserters. At last British audacity went so far as to
attack an American frigate at Hampton Roads, and carry away four alleged
British sailors, three of whom were American born. The English doctrine
that no man could expatriate himself was not allowed by America, where
immigrants and new citizens were always welcome; but in the case of
native Americans there could be no question as to their citizenship.
This outrage aroused indignation from one end of the country to the
other, and a large party clamored for war.
But the policy of Jefferson was pacific. He abhorred war, and entered
into negotiations, which came to nothing. Nor, to his mind, was the
country prepared for war. We had neither army nor navy to speak of. It
was plain that we should be beaten on the land and on the sea. Much as
he hated England, he preferred to temporize, and build a few
gunboats,--which everybody laughed at.
Nor did the French government behave much better than the English. It
looked upon the United States as an unsettled and weak country, to be
robbed with impunity. At last, driven from the high seas, the Americans
could rely only on the coasting-trade. "One half the mercantile world
was sealed up by the British, and the other half by the French."
Jefferson now appealed to Congress, and the result was the
Non-importation Act, or Embargo, forbidding Americans to trade with
France and England. This policy was intended as a pressure on English
merchants. But it was a half-measure and did not affect British
legislation, which had for its object the utter annihilation of American
commerce. Neither France nor England was hurt seriously by the Embargo,
while our ships lay rotting at the wharves, and our merchants found that
their occupation was gone. The New England merchants were discouraged
and discontented. It was not they who wished to see their ships shut up
by a doubtful policy. They would have preferred to run risks rather than
be idle. But Jefferson paid no heed to their grumblings, feeling that he
was exhibiting to foreign powers unusual forbearance. It is singular
that he persevered in a policy that nearly the whole body of merchants
censured and regarded as a failure; but he did, and Congress was
subservient to his decrees. No succeeding president ever had the
influence over Congress that he had. He was almost a dictator. He found
opposition only among the Federalists, whose power was gone forever.
At last, when the farmers and planters joined with the shipping
interests in complaining of the Embargo, Jefferson was persuaded that it
was a failure, and three days before his administration closed it was
repealed by Congress. But even this measure did not hurt the party
which he had marshalled with such transcendent tact; for his friend and
disciple, James Madison, was elected to succeed him in 1809.
The Embargo had had one result: it deferred the war with Great Britain
to the next administration. That conflict of 1812-15 was not a glorious
war for America except on the ocean. It was not entered upon by the
British with any hope of the conquest of the country, but to do all the
harm they could to the people who had achieved their independence. On
the part of the United States it was simply a choice between insult,
insolence, and injury on the one hand, and on the other the expenditure
of money and loss of life, which would bear as hard on England as on the
United States. Both parties at last wearied of a contest which promised
no permanent settlement of interests or principles. The Federalists
deprecated it from the beginning. The Republican-Democracy sustained it
from the instinct of national honor. Probably it could not have been
avoided without the surrender of national dignity. It was the last of
our wars with Great Britain. Future difficulties will doubtless be
settled by arbitration, or not settled at all, in spite of mutual
ill-will. England and America cannot afford to fight. Our late Civil War
demonstrated this,--when, with all the ill-feeling between the two
nations, war was averted. The interests of trade may mollify and soften
international jealousies, but only forbearance and the cultivation of
mutual and common interests can eradicate the sentiments of
mutual dislike.
However, it was not the Embargo, nor the meditated treason of Aaron
Burr, nor the purchase of Louisiana, important as these were, which
gives chief interest to the eight years of Jefferson's administration,
and made it a political epoch. It was the firm growth and establishment
of the Democratic party, of which Jefferson was the father and leader,
as Hamilton was the great chieftain of the Federalist. With the
accession of Jefferson to power, a new policy was inaugurated, which
from his day has been the policy of the government, except in great
financial emergencies when men of brain have had the direction of public
affairs. Democratic leaders like Jackson and Van Buren, representing the
passions or interests or prejudices of the masses, it would seem, have
been generally unfortunate enough to lead the country into financial
difficulties, because they have conformed to the unenlightened instincts
of the people rather than to the opinions of the enlightened few,--great
merchants, capitalists, and statesmen, that is, men of experience and
ability. And when these men of brain have extricated the country from
the financial distress which men inexperienced in finance and ignorant
of the principles of political economy have brought about, the
democratic leaders have regained their political ascendency, since they
appealed, more than their antagonists, to those watchwords so dear to
the American heart, the abolition of monopolies, unequal taxation, the
exaltation of the laboring classes,--whatever promises to aggrandize the
nation in a material point of view, or professes to bring about the
reign of "liberty, fraternity, and equality," and the abolition of
social distinctions.
It cannot be doubted that the policy of Jefferson, while it appealed to
the rights and interests of "working-men," of men who labor with their
hands rather than by their brains, has favored the reign of
demagogues,--the great curse of American institutions. Who now rule the
cities of New York, Philadelphia, Boston, Cincinnati, and Chicago? Is it
not those who, in cities at least, have made self-government--the great
principle for which Jefferson contended--almost an impossibility? This
great statesman was sufficiently astute to predict the rule of the
majority for generations to come, but I doubt if he anticipated the
character of the men to whom the majority would delegate their power.
Here he was not so sagacious as his great political rivals. I believe
that if he could have foreseen what a miserable set the politicians
would generally turn out to be,--with their venality, their
unscrupulousness, their vile flatteries of the people, their system of
spoils, their indifference to the higher interests of the nation,--his
faith in democracy as a form of government would have been essentially
shaken. He himself was no demagogue. His error was in not foreseeing the
logical sequence of those abstract theories which made up his political
religion,--the religion of humanity, such as the French philosophers had
taught him. But his theories pleased the people, and he himself was
personally popular,--the most so of all our statesmen, not excepting
Henry Clay, who made many enemies.
Jefferson's manners were simple, his dress was plain, he was accessible
to everybody, he was boundless in his hospitalities, he cared little for
money, his opinions were liberal and progressive, he avoided quarrels,
he had but few prejudices, he was kind and generous to the poor and
unfortunate, he exalted agricultural life, he hated artificial splendor,
and all shams and lies. In his morals he was irreproachable, unlike
Hamilton and Burr; he never made himself ridiculous, like John Adams, by
egotism, vanity, and jealousy; he was the most domestic of men,
worshipped by his family and admired by his guests; always ready to
communicate knowledge, strong in his convictions, perpetually writing
his sincere sentiments and beliefs in letters to his friends,--as
upright and honest a man as ever filled a public station, and finally
retiring to private life with the respect of the whole nation, over
which he continued to exercise influence after he had parted with power.
And when he found himself poor and embarrassed in consequence of his
unwise hospitality, he sold his library, the best in the country, to pay
his debts, as well as the most valuable part of his estate, yet keeping
up his cheerfulness and serenity of temper, and rejoicing in the general
prosperity,--which was produced by the ever-expanding energies and
resources of a great country, rather than by the political theories
which he advocated with so much ability.
On his final retirement to Monticello, in 1809, after forty-four years
of continuous public service, Jefferson devoted himself chiefly to the
care of his estate, which had been much neglected during his
presidential career. To his surprise he found himself in debt, having
lived beyond his income while president. But he did not essentially
change his manner of living, which was generous, though neither
luxurious nor ostentatious. He had stalls for thirty-six horses, and
sometimes as many as fifty guests at dinner. There was no tavern near
him which had so much company. He complains that an ox would all be
eaten in two days, while a load of hay would disappear in a night, Fond
as he was of company, he would not allow his guests to rob him of the
hours he devoted to work, either in his library or on his grounds. His
correspondence was enormous,--he received sixteen hundred and seven
letters in one year, and answered most of them. After his death there
were copies of sixteen thousand letters which he had written. His
industry was marvellous; even in retirement he was always writing or
reading or doing something. He was, perhaps, excessively fond of his
garden, of his flowers, of his groves, and his walks. Music was, as he
himself said, "the favorite passion of his soul." His house was the
largest in Virginia, and this was filled with works of art, and the
presents he had received. But his financial difficulties increased from
year to year. He was too fond of experiments and fancy improvements to
be practically successful as a farmer.
One of his granddaughters thus writes of him: "I cannot describe the
feelings of veneration, admiration, and love that existed in my heart
for him. I looked upon him as a being too great and good for my
comprehension. I never heard him utter a harsh word to any one of us. On
winter evenings, as we all sat round the fire, he taught us games, and
would play them with us. He reproved without wounding us, and commended
without making us vain. His nature was so eminently sympathetic that
with those he loved he could enter into their feelings, anticipate
their wishes, gratify their tastes, and surround them with an atmosphere
of affection."
Thus did he live in his plain but beautiful house, in sight of the Blue
Ridge, with Charlottesville and the university at his feet. He rode
daily for ten miles until he was eighty-two. He died July 4, 1826, full
of honors, and everywhere funeral orations were delivered to his memory,
the best of which was by Daniel Webster in Boston.
Among his papers was found the inscription which he wished to have
engraved on his tomb: "Here was buried Thomas Jefferson, Author of the
Declaration of American Independence, of the Statute of Virginia for
Religious Freedom, and Father of the University of Virginia." He does
not allude to his honors or his offices,--not a word about his
diplomatic career, or of his stations as governor of Virginia, Secretary
of State, or President of the United States. But the three things he
does name enshrine the best convictions of his life and the substance of
his labors in behalf of his country,--political independence, religious
freedom, and popular education.
The fame of Jefferson as author of the Declaration of Independence is
more than supported by his writings at different times which bear on
American freedom and the rights of man. It is as a writer on political
liberty that he is most distinguished. He was not an orator or
speech-maker. He worked in his library among his books, meditating on
the great principles which he enforced with so much lucidity and power.
It was for his skill with the pen that he was selected to draft the
immortal charter of American freedom, which endeared him to the hearts
of the people, and which no doubt contributed largely to cement the
States together in their resistance to Great Britain.
His reference to the statute of Virginia in favor of religious freedom
illustrates another of his leading sentiments, to which he clung with
undeviating tenacity during his whole career. He may have been a
freethinker like Franklin, but he did not make war on the religious
beliefs of mankind; he only desired that everybody should be free to
adopt such religious principles as were dear to him, without hindrance
or molestation. He was before his age in liberality of mind, and he
ought not to be stigmatized as an infidel for his wise toleration.
Although his views were far from orthodox, they did not, after all,
greatly differ from those of John Adams himself and the men of that day
who were enamoured with the ideas of Voltaire and Rousseau. At that time
even the most influential of the clergy, especially in New England, were
Arminians in their religious creed. The eighteenth century was not a
profound or religious epoch. It was an age of war and political
agitations,--a drinking, swearing, licentious, godless age among the
leaders of society, and of ignorance, prejudice, and pharisaic
formalities among the people. Jefferson's own purity and uprightness of
life amid the laxity of the times is an unquestionable evidence of the
elevation of his character and the sincerity of his moral and
religious beliefs.
The third great object of Jefferson's life was to promote popular
education as an essential condition to the safety of the republic. While
he advocated unbounded liberty, he knew well enough that it would
degenerate into license unless the people were well-informed. But what
interested him the most was the University of Virginia, in whose behalf
he spent the best part of his declining years. He gave money freely
himself, and induced the legislature to endow it liberally. He
superintended the construction of the buildings, which alone cost
$300,000; he selected the professors, prescribed the course of study,
was chairman of the board of trustees, and looked after the interests of
the institution. He thought more of those branches of knowledge which
tended to liberalize the mind than of Latin and Greek. He gave a
practical direction to the studies of the young men, allowing them to
select such branches as were congenial to them and would fit them for a
useful life. He would have no president, but gave the management of all
details to the professors, who were equal in rank. He appealed to the
highest motives among the students, and recognized them as gentlemen
rather than boys, allowing no espionage. He was rigorous in the
examinations of the students, and no one could obtain a degree unless it
were deserved. While he did not exclude religion from the college,
morning prayers being held every day, attendance upon religious services
was not obligatory. Every Sunday some clergyman from the town or
neighborhood preached a sermon, which was generally well attended. Few
colleges in this country have been more successful or more ably
conducted, and the excellence of instruction drew students from every
quarter of the South. Before the war there were nearly seven hundred
students, and I never saw a more enthusiastic set of young men, or a set
who desired knowledge for the sake of knowledge more enthusiastically
than did those in the University of Virginia.
Although it is universally admitted that Jefferson had a broad,
original, and powerful intellect, that he stamped his mind on the
institutions of his country, that to no one except Washington is the
country more indebted, yet I fail to see that he was transcendently
great in anything. He was a good lawyer, a wise legislator, an able
diplomatist, a clear writer, and an excellent president; but in none of
the spheres he occupied did he reach the most exalted height. As a
lawyer he was surpassed by Adams, Burr, and Marshall; as an orator he
was nothing at all; as a writer he was not equal to Hamilton and Madison
in profundity and power; as a diplomatist he was far below Franklin and
even Jay in tact, in patience, and in skill; as a governor he was timid
and vacillating; while as a president he is not to be compared with
Washington for dignity, for wisdom, for consistency, or executive
ability. Yet, on the whole, he has left a great name for giving shape to
the institutions of his country, and for intense patriotism. Pre-eminent
in no single direction, he was in the main the greatest political genius
that has been elevated to the presidential chair; but perhaps greater as
a politician than as a statesman in the sense that Pitt, Canning, and
Peel were statesmen. He was not made for active life; he was rather a
philosopher, wielding power by his pen, casting his searching glance
into everything, and leading men by his amiability, his sympathetic
nature, his force of character, and his enlightened mind. The question
might arise whether Jefferson's greatness was owing to force of
circumstances, or to an original, creative intellect, like that of
Franklin or Alexander Hamilton. But for the Revolution he might never
have been heard of outside his native State. This, however, might be
said of most of the men who have figured in American history,--possibly
of Washington himself. The great rulers of the world seem to be raised
up by Almighty Power, through peculiar training, to a peculiar fitness
for the accomplishment of certain ends which they themselves did not
foresee,--men like Abraham Lincoln, who was not that sort of man whom
Henry Clay or Daniel Webster would probably have selected for the
guidance of this mighty nation in the greatest crisis of its history.
AUTHORITIES.
The Life of Jefferson by Parton is the most interesting that I have read
and the fullest, but not artistic. He introduces much superfluous matter
that had better be left out. As for the other Lives of Jefferson, that
by Morse is the best; that of Schouler is of especial interest as to
Jefferson's attitude toward slavery and popular education. Randall has
written an interesting sketch. For the rest, I would recommend the same
authorities as on John Adams in the previous chapter.
JOHN MARSHALL
1755-1835
THE UNITED STATES SUPREME COURT
BY JOHN BASSETT MOORE, LL.D
While the Revolution had severed the tie which bound the colonies to the
mother country and had established the independence of the United
States, the task of organizing and consolidating the new nation yet
remained to be performed. The Articles of Confederation, though designed
to form a "perpetual union between the States," constituted in reality
but a loose association under which the various commonwealths retained
for the most part the powers of independent governments. In the treaty
of peace with Great Britain of 1782-83, strong national ground was
taken; but the general government was unable to secure the execution of
its stipulations. The public debts remained unpaid, for want of power to
levy taxes. Commerce between the States as well as with foreign nations
was discouraged and rendered precarious by variant and obstructive local
regulations. Nor did there exist any judicial authority to which an
appeal could be taken for the enforcement of national rights and
obligations as against inconsistent State laws and adjudications. These
defects were sought to be remedied by the Constitution of the United
States. But, as in the case of all other written instruments, the
provisions of this document were open to construction. Statesmen and
lawyers divided in their interpretation of it, according to their
prepossessions for or against the creation and exercise of a strong
central authority.
Among the organs of government created by the Constitution was "one
Supreme Court," in which, together with such inferior courts as Congress
might from time to time establish, was vested "the judicial power of the
United States." This power was declared to extend to all cases, in law
and equity, arising under the Constitution itself, the laws of the
United States, and treaties made under their authority; to all cases
affecting ambassadors, other public ministers and consuls; to all cases
of admiralty and maritime jurisdiction; to controversies to which the
United States should be a party; to controversies between two or more
States, between a State and citizens of another State, and between
citizens of different States, as well as between citizens of the same
State claiming lands under grants of different States, and between a
State, or the citizens thereof, and foreign States, citizens, or
subjects. In all cases affecting ambassadors, other public ministers and
consuls, and those in which a State should be a party, the Supreme Court
was vested with original jurisdiction, while in all the other
enumerated cases its jurisdiction was to be appellate. With the
exceptions of suits against a State by individuals, which were excluded
by the Eleventh Amendment, the judicial power of the United States
remains to-day as it was originally created.
But at the time when the Constitution was made, the importance to which
the judicial power would attain in the political system of the United
States could not be foreseen. The form was devised, but, like the nation
itself, its full proportions remained to be developed. In that
development, so far as it has been made by the judiciary, one man was
destined to play a pre-eminent part. This man was John Marshall, under
whose hand, as James Bryce has happily said, the Constitution "seemed
not so much to rise ... to its full stature, as to be gradually unveiled
by him, till it stood revealed in the harmonious perfection of the form
which its framers had designed." For this unrivalled achievement there
has been conceded to Marshall by universal consent the title of
Expounder of the Constitution of the United States; and the general
approval with which his work is now surveyed is attested by the tribute
lately paid to his memory. The observance on the 4th of February, 1901,
by a celebration spontaneously national, of the one hundredth
anniversary of his assumption of the office of Chief Justice of the
United States, is without example in judicial annals. It is therefore a
matter of interest not only to every student of American history, but
also to every American patriot, to study his career and to acquaint
himself with that combination of traits and accidents by which his
character and course in life were determined.
John Marshall was born Sept. 24, 1755, in Fauquier County, Virginia, at
a small village then called Germantown, but now known as Midland, a
station on the Southern Railway not far south of Manassas. His
grandfather, John Marshall, the first of the family of whom there
appears to be any record, was an emigrant from Wales. He left four sons,
the eldest of whom was Thomas Marshall, the father of the Chief Justice.
Thomas Marshall, though a man of meagre early education, possessed great
natural gifts, and rendered honorable and useful public service both as
a member of the Virginia Legislature, and as a soldier in the
Revolutionary War, in which he rose to the rank of colonel. His son,
John Marshall, was the eldest of fifteen children. Of his mother, whose
maiden name was Keith, little is known, but it has been well observed by
one of Marshall's biographers, that, as she reared her fifteen
children--seven sons and eight daughters--all to mature years, she could
have had little opportunity to make any other record for herself, and
could hardly have made a better one.
Subsequently to his birth, Marshall's parents removed to an estate
called Oak Hill, in the western part of Fauquier County. It was here
that in 1775, when nineteen years of age, he heard the call of his
country and entered the patriot army as a lieutenant. We have of him at
this time the first personal description, written by a kinsman who was
an eye-witness of the scene, and preserved in the eulogy delivered by
Mr. Binney before the Select and Common Councils of Philadelphia on
Sept. 24, 1835. "His figure," says the writer, "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 raven-black 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. He wore a purple or
pale-blue hunting shirt, and trousers 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.... 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.... He addressed the company for
something like an hour.... He spoke at the close of his speech of the
Minute Battalion about to be raised, and said he was 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
foot-races and other athletic exercises, at which there was no betting.
He had walked ten miles to the muster field, and returned the same
distance on foot to his father's house at Oak Hill, where he arrived a
little after sunset."
The patriot forces in which Marshall was enrolled were described as
minute-men, of whom it was said by John Randolph that they "were raised
in a minute, armed in a minute, marched in a minute, fought in a minute,
and vanquished in a minute." Their uniform consisted of homespun hunting
shirts, bearing the words "Liberty or Death" in large white letters on
the breast, while they wore bucks' tails in their hats and tomahawks and
scalping-knives in their belts. We are told, and may readily believe,
that their appearance inspired in the enemy not a little apprehension;
but we are also assured, and may as readily believe, that this feeling
never was justified by any act of cruelty. Their first active service
was seen in the autumn of 1775, when they marched for Norfolk, where
Lord Dunmore had established his headquarters. They saw their first
fighting at Great Bridge, where the British troops were defeated with
heavy loss. Subsequently, the Virginia forces to which Marshall belonged
joined the army of Washington in New Jersey, and he saw service not only
in that State, but also in Pennsylvania and New York, and, later in the
war, again in Virginia. In May, 1777, he was appointed a captain. He
took part in the battles of Iron Hill and Brandywine. He was also
present at Monmouth, at Paulus (or Powles) Hook, and at the capture of
Stony Point. He endured the winter's sufferings at Valley Forge, where
because of his patience, firmness, and good humor, he won the special
regard of the soldiers and his brother-officers. In the course of his
military service he often acted as judge-advocate; and he made the
acquaintance of Washington and Hamilton, with both of whom he contracted
a lasting friendship.
As to the effect of these early experiences on the formation of his
opinions, Marshall himself has testified. "I am," said he on a certain
occasion, "disposed to ascribe my devotion to the Union, and to a
government competent to its preservation, at least as much to casual
circumstances as to judgment. I had grown up at a time ... 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; ... and where I was confirmed in the habit of considering America
as my country and Congress as my government."
In 1780 Marshall was admitted to the Bar, and after another term of
service in the army he began, in 1781, the practice of the law in
Fauquier County. His professional attainments must then have been
comparatively limited. His education in letters he had derived solely
from his father, who was fond of literature and possessed some of the
writings of the English masters, and from two gentlemen of classical
learning, whose tuition he enjoyed for the brief period of two years. Of
legal education he had had, according to our present standards,
exceedingly little. It is said that when about eighteen years of age he
began the study of Blackstone; but apart from this his legal education
seems to have been gained from a short course of lectures by Chancellor
Wythe, at William and Mary College, and from such reading as he was able
to indulge in during his military service. And yet, removing to Richmond
about 1783, he almost immediately rose to professional eminence. "This
extraordinary man," said William 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 of 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.... He possesses one original and
almost superhuman 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."
From 1782 to 1795, Marshall was repeatedly elected to the Virginia
Legislature, the last time without his knowledge and against his wishes;
and he also served one term as a member of the Executive Council of the
State; but, as his residence was for the most part at Richmond, his
public service did not seriously interrupt his career at the Bar. His
experience in State politics, however, served to deepen his conviction
of the need of an efficient and well-organized national government and
of restrictions on the power of the States.
In the formation of the Constitution of the United States Marshall had
no hand; he was not a member of the convention by which it was framed;
but when it was submitted to the several States for their action, he
became a determined advocate of its adoption. In the Virginia
convention, which was called to act upon that question, the prospects of
a favorable decision seemed at first to be most unpromising. Among those
who opposed ratification we find the names of Henry, Mason, Grayson, and
Monroe, names which sufficiently attest that the opposition was one, not
of mere faction or obstruction, but of principle and patriotic feeling.
Henry, who had been one of the first in earlier days to sound the note
of revolution, saw in the proposed national government a portent to
popular liberties. In the office of President he perceived "the likeness
of a kingly crown." In the control of the purse and the sword, he
foresaw the extinction of freedom. In the power to make treaties, to
regulate commerce, and to adopt laws, he discerned an "ambuscade" in
which the rights of the States and of the people would be destroyed
unawares. To these alarming predictions the advocates of ratification
replied with strong and temperate reasoning, and, while Madison was
their leader, among those who won distinction in the contest stood
Marshall. He argued that the plan adopted by the Federal Convention
provided for a "regulated democracy," the only alternative to which was
despotism. He contended for the establishment of an efficient government
as the only means of assuring popular rights and the preservation of the
public faith, violations of which were constantly occurring under the
existing government. It is interesting to notice that, in replying to
the suggestion that the legislative power of the proposed government
would prove to be practically unlimited, he declared: "If they [the
United States] 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 against.... They would declare
it void." In the end the Convention ratified the Constitution by a
majority of ten votes, a result probably influenced by the circumstance
that it had then been accepted by nine States, and had thus by its terms
been established between the adhering commonwealths.
After the organization of the national government Marshall consistently
supported the measures of Washington's administrations, including the
Jay treaty, and became a leader of the Federalist party, which, in spite
of Washington's great personal hold on the people, was in a minority in
Virginia. But he did not covet office. He declined the position of
Attorney-General of the United States, which was offered to him by
Washington, as well as the mission to France as successor to Monroe. In
1797, however, at the earnest solicitation of President Adams, he
accepted in a grave emergency the post of envoy-extraordinary and
minister-plenipotentiary to that country on a special mission, in which
he was associated with Charles Cotesworth Pinckney, of South Carolina,
and Elbridge Gerry, of Massachusetts.
Few diplomatic enterprises have had so strange a history. When the
plenipotentiaries arrived in Paris, the Directory was at the height of
its power, and Talleyrand was its minister of foreign affairs. He at
first received the envoys unofficially, but afterwards intimated to
them, through his private secretary, that they could not have a public
audience of the Directory till their negotiations were concluded.
Meanwhile, they were waited upon by various persons, who represented
that, in order to effect a settlement of the differences between the two
countries, it would be necessary to place a sum of money at the disposal
of Talleyrand as a _douceur_ for the ministers (except Merlin, the
minister of justice, who was already obtaining enough from the
condemnation of vessels), and also to make a loan of money to the
government. The plenipotentiaries, though they at first repulsed these
suggestions, at length offered to send one of their number to America to
consult the government on the subject of a loan, provided that the
Directory would in the meantime suspend proceedings against captured
American vessels. This offer was not accepted, and the American
representatives, after further conference with the French
intermediaries, stated that they considered it degrading to their
country to carry on further indirect intercourse, and that they had
determined to receive no further propositions unless the persons who
bore them had authority to treat. In April, 1798, after spending in the
French capital six months, during which they had with Talleyrand two
unofficial interviews and exchanged with him an ineffectual
correspondence, Pinckney and Marshall left Paris, Gerry, to the great
dissatisfaction of his government, remaining behind. Marshall was the
first to reach the United States. He was greeted with remarkable
demonstrations of respect and approbation; for, although his mission was
unsuccessful, he had powerfully assisted in maintaining a firm and
dignified position in the negotiations. His entrance into Philadelphia
"had the _eclat_ of a triumph." It was at a public dinner given to him
by members of both Houses of Congress that the sentiment was pronounced,
"Millions for defence, but not a cent for tribute." This sentiment has
often been ascribed to Pinckney, who is supposed to have uttered it when
approached by the unofficial agents in Paris. The correspondence shows,
however, that the words employed by Mr. Pinckney were, "No, no; not a
sixpence!" The meaning was similar, but the phrase employed at
Philadelphia is entitled to a certain immortality of its own.
On his return to the United States, Marshall resumed the practice of
his profession; but soon afterwards, at the earnest entreaty of
Washington, he became a candidate for Congress, declining for that
purpose an appointment to the Supreme Court of the United States, as
successor to Mr. Justice Wilson. He was elected after an exciting
canvass, and in December, 1799, took his seat. He immediately assumed a
leading place among the supporters of President Adams's administration,
though on one occasion he exhibited his independence of mere party
discipline by voting to repeal the obnoxious second section of the
Sedition Law. But of all the acts by which his course in Congress was
distinguished, the most important was his defence of the administration,
in the case of Jonathan Robbins, _alias_ Thomas Nash, By the
twenty-seventh article of the Jay treaty it was provided that fugitives
from justice should be delivered up for the offence of murder or
forgery. Under this stipulation Robbins, _alias_ Nash, was charged with
the commission of the crime of murder on board a British privateer on
the high seas. He was arrested on a warrant issued upon the affidavit of
the British Consul at Charleston, South Carolina. After his arrest an
application was made to Judge Bee, sitting in the United States Circuit
Court at Charleston, for a writ of _habeas corpus_. While Robbins was in
custody, the President, John Adams, addressed a note to Judge Bee,
requesting and advising him, if it should appear that the evidence
warranted it, to deliver the prisoner up to the representatives of the
British government. The examination was held by Judge Bee, and Robbins
was duly surrendered. It is an illustration of the vicissitudes of
politics that, on the strength of this incident, the cry was raised that
the President had caused the delivery up of an American citizen who had
previously been impressed into the British service. For this charge
there was no ground whatever; but it was made to serve the purposes of
the day, and was one of the causes of the popular antagonism to the
administration of John Adams. When Congress met in December, 1799, a
resolution was offered by Mr. Livingston, of New York, severely
condemning the course of the administration. Its action was defended in
the House of Representatives by Marshall on two grounds: first, that the
case was one clearly within the provisions of the treaty; and, second,
that no act having been passed by Congress for the execution of the
treaty, it was incumbent upon the President to carry it into effect by
such means as happened to be within his power. The speech which Marshall
delivered on that occasion is said to have been the only one that he
ever revised for publication. It "at once placed him," as Mr. Justice
Story has well said, "in the front rank of constitutional statesmen,
silenced opposition, and settled forever the points of national law
upon which the controversy hinged." So convincing was it that Mr.
Gallatin, who had been requested by Mr. Livingston to reply, declined to
make the attempt, declaring the argument to be unanswerable.
In May, 1800, on the reorganization of President Adams's Cabinet,
Marshall unexpectedly received the appointment of Secretary of War. He
declined it; but the office of Secretary of State also having become
vacant, he accepted that position, which he held till the fourth of the
following March. Of his term as Secretary of State, which lasted less
than ten months, little has been said; nor was it distinguished by any
event of unusual importance, save the conclusion of the convention with
France of Sept. 30, 1800, the negotiation of which, at Paris, was
already in progress, under instructions given by his predecessor, when
he entered the Department of State. The war between France and Great
Britain, growing out of the French Revolution, was still going on. The
questions with which he was required to deal were not new; and while he
exhibited in the discussion of them his usual strength and lucidity of
argument, he had little opportunity to display a capacity for
negotiation. Only a few of his State papers have been printed, nor are
those that have been published of special importance. He gave
instructions to our minister to Great Britain, in relation to
commercial restrictions, impressments, and orders in council violative
of the law of nations; to our minister to France, in regard to the
violations of neutral rights perpetrated by that government; and to our
minister to Spain, concerning infractions of international law
committed, chiefly by French authorities, within the Spanish
jurisdiction. Of these various State papers the most notable was that
which he addressed on Sept. 20, 1800, to Rufus King, then United States
Minister at London. Reviewing in this instruction the policy which his
government had pursued, and to which it still adhered, in the conflict
between the European powers, he said:--
"The United States do not hold themselves in any degree responsible to
France or to Britain for their negotiations with the one or the other of
these powers; but they are ready to make amicable and reasonable
explanations with either.... It has been the object of the American
government, from the commencement of the present war, to preserve
between the belligerent powers an exact neutrality.... The aggressions,
sometimes of one and sometimes of another belligerent power, have forced
us to contemplate and prepare for war as a probable event. We have
repelled, and we will continue to repel, injuries not doubtful in their
nature and hostilities not to be misunderstood. But this is a situation
of necessity, not of choice. It is one in which we are placed, not by
our own acts, but by the acts of others, and which we [shall] change so
soon as the conduct of others will permit us to change it."
For a month Marshall held both the office of Secretary of State and
that of Chief Justice; but at the close of John Adams' administration he
devoted himself exclusively to his judicial duties, never performing
thereafter any other public service, save that late in life he acted as
a member of the convention to revise the Constitution of Virginia.
It is an interesting fact that, prior to his appointment as Chief
Justice, Marshall had appeared only once before the Supreme Court, and
on that occasion he was unsuccessful. This appearance was in the case of
Ware _v_. Hylton, which was a suit brought by a British creditor to
compel the payment by a citizen of Virginia of a pre-Revolutionary debt,
in conformity with the stipulations of the treaty of peace. During the
Revolutionary War various States, among which was Virginia, passed acts
of sequestration and confiscation, by which it was provided that, if the
American debtor should pay into the State treasury the amount due to his
British creditor, such payment should constitute an effectual plea in
bar to a subsequent action for the recovery of the debt. When the
representatives of the United States and Great Britain met in Paris to
negotiate for peace, the question of the confiscated debts became a
subject of controversy, especially in connection with that of the claims
of the loyalists for the confiscation of their estates. Franklin and
Jay, though they did not advocate the policy of confiscating debts,
hesitated, chiefly on the ground of a want of authority in the existing
national government to override the acts of the States. But when John
Adams arrived on the scene, the situation soon changed. By one of those
dramatic strokes of which he was a master, he ended the discussion by
suddenly declaring, in the presence of the British plenipotentiaries,
that, so far as he was concerned, he "had no notion of cheating
anybody;" that the question of paying debts and the question of
compensating the loyalists were two; and that, while he was opposed to
compensating the loyalists, he would agree to a stipulation to secure
the payment of debts. It was therefore provided, in the fourth article
of the treaty, that creditors on either side should meet with no lawful
impediment to the recovery in full sterling money of _bona fide_ debts
contracted prior to the war. This stipulation is remarkable, not only as
the embodiment of an enlightened policy, but also as perhaps the
strongest assertion to be found in the acts of that time of the power
and authority of the national government. Indeed, when the British
creditors, after the establishment of peace, sought to proceed in the
State courts, they found the treaty unavailing, since those tribunals
held themselves still to be bound by the local statutes. In order to
remove this difficulty, as well as to provide a rule for the future,
there was inserted in the Constitution of the United States the clause
expressly declaring that treaties then made, or which should be made,
under the authority of the United States, should be the supreme law of
the land, binding on the judges in every State, anything in the
Constitution or laws of any State to the contrary notwithstanding.
On the strength of this provision, the question of the debts was raised
again, and was finally brought before the Supreme Court. Marshall
appeared for the State of Virginia, to oppose the collection of the
debt. He based his contention on two grounds: first, that by the law of
nations the confiscation of private debts was justifiable; second, that,
as the debt had by the law of Virginia been extinguished by its payment
into the State treasury, and had thus ceased to be due, the stipulation
of the treaty was inapplicable, since there could be no creditor without
a debtor. It is not strange that this argument was unsuccessful. While
it doubtless was the best that the cause admitted of, it may perhaps
serve a useful purpose as an illustration of the right of the suitor to
have his case, no matter how weak it may be, fully and fairly presented
for adjudication. On the question of the right of confiscation the
judges differed, one holding that such a right existed, while another
denied it, two doubted, and the fifth was silent. But as to the
operation of the treaty, all but one agreed that it restored to the
original creditor his right to sue, without regard to the original
validity or invalidity of the Virginia statute.
When Marshall took his seat upon the bench, the Supreme Court, since its
organization in 1790, had rendered only six decisions involving
constitutional questions. Of his three predecessors, Jay, Rutledge, and
Ellsworth, the second, Rutledge, after sitting one term under a recess
appointment, retired in consequence of his rejection by the Senate; and
neither Jay nor Ellsworth, though both were men of high capacity, had
found in their judicial station, the full importance of which was
unforeseen, an opportunity for the full display of their powers, either
of mind or of office. The coming of Marshall to the seat of justice
marks the beginning of an era which is not yet ended, and which must
endure so long as our system of government retains the essential
features with which it was originally endowed. With him really began the
process, peculiar to our American system, of the development of
constitutional law by means of judicial decisions, based upon the
provisions of a fundamental written instrument and designed for its
exposition and enforcement. By the masterful exercise of this momentous
jurisdiction, he profoundly affected the course of the national life and
won in the knowledge and affections of the American people a larger and
higher place than ever has been filled by any other judicial magistrate.
From 1801 to 1835, in the thirty-four years during which he presided in
the Supreme Court, sixty-two decisions were rendered involving
constitutional questions, and in thirty-six of these the opinion of the
court was written by Marshall. In the remaining twenty-six the
preparation of the opinions was distributed among his associates, who
numbered five before 1808 and after that date six. During the whole
period of his service, his dissenting opinions numbered eight, only one
of which involved a constitutional question. Nor was the supremacy which
this record indicates confined to questions of constitutional law. The
reports of the court during Marshall's tenure fill thirty volumes,
containing 1,215 cases. In ninety-four of these no opinions were filed,
while fifteen were decided "by the court." In the remaining 1,106 cases
the opinion of the court was delivered by Marshall in 519, or
nearly one-half.
A full review of the questions of constitutional law decided by the
Supreme Court during Marshall's term of service would involve a
comprehensive examination of the foundations on which our constitutional
system has been reared; but we may briefly refer to certain leading
cases by which fundamental principles were established.
In one of his early opinions he discussed and decided the question
whether an Act of Congress repugnant to the Constitution is void. This
question was then by no means free from difficulty and doubt. The
framers of the Constitution took care to assure its enforcement by
judicial means against inconsistent State action, by the explicit
provision that the Constitution itself, as well as Federal statutes and
treaties, should be the "supreme law" of the land, and as such binding
upon the State judges, in spite of anything in the local laws and
constitutions. But as to the power of the courts to declare
unconstitutional a Federal statute, the instrument was silent. There is
reason to believe that this silence was not unintentional; nor would it
be difficult to cite highly respectable opinions to the effect that the
courts, viewed as a co-ordinate branch of the government, have no power
to declare invalid an Act of the Legislature, unless they possess
express constitutional authority to that effect. We have seen that
Marshall expressed in the discussions of the Virginia convention a
contrary view; but it is one thing to assert an opinion in debate and
another thing to declare it from the bench, especially in a case
involved in or related to political contests; and such a case was
Marbury _v_. Madison.
Marbury was a citizen of the District of Columbia, who had been
appointed as a justice of the peace by John Adams, just before his
vacation of the office of President. It was one of the so-called
"midnight" appointments of President Adams, which became a subject of
heated political controversy. It was alleged that Marbury's commission
had been made out, sealed, and signed, but that Mr. Madison, who
immediately afterwards became Secretary of State, withheld it from him.
Marbury therefore applied to the Supreme Court for a writ of _mandamus_
to compel its delivery. In the course of the judgment, which was
delivered by Marshall, opinions were expressed on certain questions the
decision of which was not essential to the determination of the case,
and into these it is unnecessary now to enter, although one of them has
been cited and acted upon as a precedent. But on one point the decision
of the court was requisite and fundamental, and that was the point of
jurisdiction. It was held that the court had no power to grant the writ,
because the Federal statute by which the jurisdiction was sought to be
conferred was repugnant to the Constitution of the United States. This
was the great question decided, and it was a decision of the first
importance, since its assertion of the final authority of the judicial
power, in the interpretation and enforcement of our written
constitutions, came to be accepted almost as an axiom of American
jurisprudence. In the course of his reasoning, Chief Justice Marshall
expressed in terms of unsurpassed clearness the principle which lay at
the root of his opinion. "It is," he declared, "emphatically the
province and duty of the judicial department to say what the law is....
If two laws conflict with each other, the courts must decide on the
operation of each.... If, then, the courts are to regard the
Constitution, and the Constitution is superior to any ordinary Act of
the Legislature, the Constitution and not such ordinary Act must govern
the case to which they both apply. Those, then, who controvert the
principle that the Constitution is to be considered in court as a
paramount law, are reduced to the necessity of maintaining that courts
must close their eyes on the Constitution and see only the law. This
doctrine would subvert the very foundation of all written
constitutions." In subsequently applying this rule, Marshall affirmed
that the courts ought never to declare an Act of Congress to be void
"unless upon a clear and strong conviction of its incompatibility with
the Constitution." Nevertheless, the power has been constantly and
frequently exercised; and there can be no doubt that from its exercise
the Supreme Court of the United States derives a political importance
not possessed by any other judicial tribunal.
While the supremacy of the Constitution was thus judicially asserted
over the acts of the national legislature, by another series of
decisions its proper supremacy over acts of the authorities of the
various States was in like manner vindicated. Of this series we may take
as an example Cohens _v_. Virginia, decided in 1828. In this case a
writ of error was obtained from the Supreme Court of the United States
to a court of the State of Virginia, in order to test the validity of a
statute of that State which was supposed to be in conflict with a law of
the United States. It was contended on the part of Virginia that the
Supreme Court could exercise no supervision over the decisions of the
State tribunals, and that the clause in the Judiciary Act of 1789 which
purported to confer such jurisdiction was invalid. In commenting upon
this argument, Chief Justice Marshall observed that if the Constitution
had provided no tribunal for the final construction of itself, or of the
laws or treaties of the nation, then the Constitution and the laws and
treaties might receive as many constructions as there were States. He
then proceeded to demonstrate that such a power of supervision existed,
maintaining that the general government, though limited as to its
objects, was supreme with respect to those objects, and that such a
right of supervision was essential to the maintenance of that supremacy.
In 1819, he delivered in the case of McCulloch _v_. Maryland what is
generally regarded as his greatest and most carefully reasoned opinion.
The particular questions involved were those (1) of the power of the
United States to incorporate a bank, and (2) of the freedom of a bank so
incorporated from State taxation or control. The United States bank,
which Congress had rechartered in 1816, had established a branch in
Maryland. Soon afterwards the Legislature passed an Act requiring all
banks situated in the State to issue their notes on stamped paper, the
object being to strike at the branch bank by indirectly taxing it. The
case was 'argued before the Supreme Court by the most eminent lawyers of
the day, Pinkney, Webster, and Wirt appearing for the bank, and Luther
Martin, Joseph Hopkinson, and Walter Jones for the State of Maryland.
The unanimous opinion of the court was delivered by Marshall. It
asserted not only the power of the Federal government to incorporate a
bank, but also the freedom of such a bank from the taxation, control, or
obstruction of any State. While no express power of incorporation was
given by the Constitution, yet it was found to be a power necessarily
implied, since it was essential to the accomplishment of the objects of
the Union. This principle Marshall laid down in these memorable words:
"Let the end be legitimate, let it be within the scope of the
Constitution, and all means which are appropriate, which are plainly
adapted to that end, which are not prohibited, but consist with the
letter and spirit of the Constitution, are constitutional."
Of no less importance than the opinions heretofore mentioned are those
that deal with the power of the general government to regulate commerce
and to preserve it from hindrance on the part of the States. Of these
the chief example is that which was delivered in the case of Gibbons
_v_. Ogden, in 1824. By the Legislature of New York an exclusive right
had been granted to Chancellor Livingston and Robert Fulton for a term
of years to navigate the waters of the State with steam. The validity of
this statute had been maintained by the judges in New York, including
Chancellor Kent, and an injunction had been issued restraining other
persons from running steamboats between Elizabethtown, New Jersey, and
the city of New York, although they were enrolled and licensed as
coasting vessels under the laws of the United States. The Supreme Court,
speaking through Marshall, held the New York statute to be
unconstitutional. By the Constitution of the United States, Congress is
invested with power "to regulate commerce with foreign nations and
among the several States." The term "commerce" Marshall declared to
embrace all the various forms of intercourse, including navigation, and
he affirmed that "wherever commerce among the States goes, the judicial
power of the United States goes to protect it from invasion by State
legislatures."
Mr. Justice Bradley declared that it might truly be said that "the
Constitution received its permanent and final form from judgments
rendered by the Supreme Court during the period in which Marshall was at
its head;" and that, "with a few modifications, superinduced by the
somewhat differing views on two or three points of his great successor,
and aside from the new questions growing out of the Civil War and the
recent constitutional amendments, the decisions made since Marshall's
time have been little more than the applications of principles
established by him and his venerated associates." To the rule that
Marshall's great constitutional opinions continue to be received as
authority, there are, however, a few exceptions, the chief of which is
that delivered in the Dartmouth College Case, the particular point of
which--that acts of incorporation constitute contracts which the State
legislatures can neither alter nor revoke--has been greatly limited by
later decisions, while its effect has been generally obviated by express
reservations of the right of amendment and repeal. With rare exceptions,
however, his constitutional opinions not only remain unshaken, but
continue to form the very warp and woof of the law, and "can scarcely
perish but with the memory of the Constitution itself." Nor should we,
in estimating his achievements, lose sight of the almost uncontested
ascendency which he exercised, in matters of constitutional law, over
the members of the tribunal in which he presided, in spite of what might
have been supposed to be their predilections. When constitutional
questions trench, as they often do, on the domain of statesmanship, it
is natural, especially where precedents are lacking, that judges should
divide upon them in accordance with the views of government maintained
by the political parties with which they previously acted; and after
1811, a majority of Marshall's associates on the bench held their
appointment from administrations of the party opposed to that to which
he had belonged. This circumstance, however, does not appear to have
disturbed the consistent and harmonious development of the system to
which he was devoted; and it was in the second half of his term of
service that many of the most important cases--such as McCulloch _v_.
Maryland, Cohens _v_. Virginia, and Gibbons _v_. Ogden, in which he
asserted the powers of national government--were decided.
Nor is it alone upon his opinions on questions of constitutional law
that Marshall's fame as a judge rests. The decisions of the Supreme
Court on constitutional questions naturally attract greater popular
interest than its judgments in other matters; but we have seen that its
jurisdiction embraces a wide range of subjects. Nor is it desirable that
its sphere of action should be circumscribed in the direction of
confining it to questions that have a semi-political aspect. Indeed, it
may be believed that the safety and permanence of the court would be
best assured by extending rather than by contracting its jurisdiction in
ordinary comercial subjects. In dealing with such subjects, however,
Marshall did not achieve that pre-eminence which he acquired in the
domain of constitutional law, a fact doubtless to be accounted for by
the defects of his early legal education, since no originality of mind
can supply the place of learning in matters which depend upon reasoning
more or less technical and artificial. But in the domain of
international law, in which there was greater opportunity for elementary
reasoning, he exhibited the same traits of mind, the same breadth and
originality of thought, the same power in discovering, and the same
certainty in applying, fundamental principles that distinguished him in
the realm of constitutional discussions; and it was his lot on more than
one occasion to blaze the way in the establishment of rules of
international conduct. During the period of his judicial service,
decisions were rendered by the Supreme Court in 195 cases involving
questions of international law, or in some way affecting international
relations. In eighty of these cases the opinion of the court was
delivered by Marshall; in thirty-seven by Mr. Justice Story; in
twenty-eight by Mr. Justice Johnson; in nineteen, by Mr. Justice
Washington; in fourteen by Mr. Justice Livingston; in five, by Mr.
Justice Thompson; and in one each by Justices Baldwin, Gushing, and
Duvall. In eight the decision was rendered "by the court." In five cases
Marshall dissented. As an evidence of the respect paid to his opinions
by publicists, the fact may be pointed out that Wheaton, in the first
edition of his "Elements of International Law," makes 150 judicial
citations, of which 105 are English and 45 American, the latter being
mostly Marshall's. In the last edition he makes 214 similar citations,
of which 135 are English and 79 American, the latter being largely
Marshall's; and it is proper to add that one of the distinctive marks of
his last edition is the extensive incorporation into his text of the
words of Marshall's opinions. Out of 190 cases cited by Hall, a recent
English publicist of pre-eminent merit, 54 are American, and in more
than three-fifths of these the opinions are Marshall's.
One of the most far-reaching of all Marshall's opinions on questions of
international law was that which he delivered in the case of the
schooner "Exchange," decided by the Supreme Court in 1812. In preparing
this opinion he was, as he declared, compelled to explore "an unbeaten
path, with few, if any, aids from precedents or written laws;" for the
status of a foreign man-of-war in a friendly port had not then been
defined, even by the publicists. The "Exchange" was an American vessel,
which had been captured and confiscated by the French under the
Rambouillet decree,--a decree which both the Executive and the Congress
of the United States had declared to constitute a violation of the law
of nations. She was afterwards converted by the French government into a
man-of-war, and commissioned under the name of the "Balaou." In this
character she entered a port of the United States, where she was
libelled by the original American owners for restitution. Seasoning by
analogy, Marshall, in a remarkably luminous opinion, held that the
vessel, as a French man-of-war, was not subject to the jurisdiction of
the ordinary tribunals; and his opinion forms the basis of the law on
the subject at the present day.
By this decision, the rightfulness or the wrongfulness of the capture
and condemnation of the "Exchange" was left to be determined by the two
governments as a political question. In this respect Marshall
maintained, as between the different departments of government, when
dealing with questions of foreign affairs, a distinction which he
afterwards sedulously preserved, confining the jurisdiction of the
courts to judicial questions. Thus he laid it down in the clearest terms
that the recognition of national independence, or of belligerency, being
in its nature a political act, belongs to the political branch of the
government, and that in such matters the courts follow the political
branch. Referring, on another occasion, to a similar question, he said:
"In a controversy between two nations concerning national boundary, it
is scarcely possible that the courts of either side should refuse to
abide by the measures adopted by its own government.... If those
departments which are entrusted with the foreign intercourse of the
nation, which assert and maintain its interests against foreign powers
have unequivocally asserted its rights of dominion over a country of
which it is in possession, and which it claims under a treaty; if the
legislature has acted on the construction thus asserted, it is not in
its own courts that this construction is to be denied." (Foster
_v_. Neilson).
In the case of the American Insurance Company _v_. Canter, he asserted
the right of the government to enlarge the national domain, saying: "The
Constitution confers absolutely on the government of the Union the power
of making war and of making treaties; consequently, that government
possesses the power of acquiring territory, either by conquest or by
treaty." But he held the rights of private property in such case to be
inviolate (U.S. _v_. Percheman). The most luminous exposition of
discovery as a source of title, and of the nature of Indian titles, is
to be found in one of his opinions (Johnson _v_. McIntosh).
A fundamental doctrine of international law is that of the equality of
nations. If a clear and unequivocal expression of it be desired, it may
be found in the opinion of Marshall in the case of "The Antelope." "No
nation," he declared, "can make a law of nations. No principle is more
universally acknowledged than the perfect equality of nations. Russia
and Geneva have equal rights." And when the representatives of the
United States fifty years later sought to establish at Geneva the
liability of Great Britain for the depredations of the "Alabama" and
other Confederate cruisers fitted out in British ports in violation of
neutrality, one of the strongest authorities on which they relied was
his opinion in the case of the "Gran Para."
In the decision of prize cases, Marshall, unlike some of his associates,
was disposed to moderate the rigor of the English doctrines, as laid
down by Sir William Scott. "I respect Sir William Scott," he declared on
a certain occasion, "as I do every truly great man; and I respect his
decisions; nor should I depart from them on light grounds; but it is
impossible to consider them attentively without perceiving that his mind
leans strongly in favor of the captors." This liberal disposition,
blended with independence of judgment, led Marshall to dissent from the
decision of the court in two well-known cases. In one of these, which is
cited by Phillimore as the "great case" of "The Venus," it was held that
the property of an American citizen domiciled in a foreign country
became, on the breaking out of war with that country, immediately
confiscable as enemy's property, even though it was shipped before he
had knowledge of the war. Marshall dissented, maintained that a mere
commercial domicile ought not to be presumed to continue longer than
the state of peace, and that the fate of the property should depend upon
the conduct of the owner after the outbreak of the war, in continuing to
reside and trade in the enemy's country or in taking prompt measures to
return to his own. In the other case--that of the "Commercen"--he sought
to disconnect the war in which Great Britain was engaged on the
continent of Europe from that which she was carrying on with the United
States, and to affirm the right of her Swedish ally to transport
supplies to the British army in the Peninsula without infringing the
duties of neutrality towards the United States. As to his opinion in the
case of "The Venus," Chancellor Kent declared that there was "no doubt
of its superior solidity and justice;" and it must be admitted that his
opinion in the case of the "Commercen," rested on strong logical
grounds, since the United States and the allies of Great Britain in the
war on the Continent never considered themselves as enemies.
It is not, however, by any means essential to Marshall's pre-eminence as
a judge, to show that his numerous opinions are altogether free from
error or inconsistency. In one interesting series of cases, relating to
the power of a nation to enforce prohibitions of commerce by the seizure
of foreign vessels outside territorial waters, the views which he
originally expressed in favor of the existence of such a right appear to
have undergone a marked, if not radical, change, in favor of the wise
and salutary exemption of ships from visitation and search on the high
seas in time of peace (Rose _v_. Himely),--a principle which he affirmed
on more than one occasion (The Antelope). In the reasoning of another
case, though not in its result, we may perhaps discern traces of the
preconceptions formed by the advocate in the argument concerning the
British debts. This was the case of Brown _v_. United States, which
involved the question of the confiscability of the private property of
an enemy on land, by judicial proceedings, in the absence of an Act of
Congress expressly authorizing such proceedings. On the theory that war
renders all property of the enemy liable to confiscation, Mr. Justice
Story, with the concurrence of one other member of the Court, maintained
that the Act of Congress declaring war of itself gave ample authority
for the purpose. The majority held otherwise, and Marshall delivered the
opinion. Referring to the practice of nations and the writings of
publicists, he declared that, according to "the modern rule," "tangible
property belonging to an enemy and found in the country at the
commencement of war, ought not to be immediately confiscated;" that
"this rule" seemed to be "totally incompatible with the idea that war
does of itself vest the property in the belligerent government;" and,
consequently, that the declaration of war did not authorize the
confiscation. Since effect was thus given to the modern usage of
nations, it was unnecessary to declare, as he did in the course of his
opinion, that "war gives to the sovereign full right to take the persons
and confiscate the property of the enemy, wherever found," and that the
"mitigations of this rigid rule, which the humane and wise policy of
modern times has introduced into practice," though they "will more or
less affect the exercise of this right," "cannot impair the right
itself." Nor were the two declarations quite consistent. The supposition
that usage may render unlawful the exercise of a right, but cannot
impair the right itself, is at variance with sound theory. Between the
effect of usage on rights, and on the exercise of rights, the law draws
no precise distinction. A right derived from custom acquires no
immutability or immunity from the fact that the practices out of which
it grew were ancient and barbarous. We may therefore ascribe the dictum
in question to the influence of preconceptions, and turn for the true
theory of the law to an opinion of the same great judge, delivered
twenty years later, in which he denied the right of the conqueror to
confiscate private property, on the ground that it would violate "the
modern usage of nations, which has become law" (U.S. _v_. Percheman).
United with extraordinary powers of mind, we find in Marshall the
greatest simplicity of life and character. In this union of simplicity
and strength he illustrated the characteristics of the earlier period
of our history. He has often been compared with the great judges of
other countries. He has been compared with Lord Mansfield; and although
he did not possess the extensive learning and elegant accomplishments of
that renowned jurist, the comparison is not inappropriate when we
consider their breadth of understanding and powers of reasoning; and yet
Mansfield, as a member of the House of Lords, defending the prerogatives
of the Crown and Parliament, and Marshall as an American patriot, sword
in hand, resisting in the field the assumptions of imperial power,
represent opposite conceptions. He has been compared with Lord Eldon;
and it may be that in fineness of discrimination and delicate
perceptions of equity he was excelled by that famous Lord Chancellor;
and yet no greater contrast could be afforded than that of Eldon's
uncertainty and procrastination on the bench with Marshall's bold and
masterful readiness. He has been compared with Lord Stowell, and it may
be conceded that in clearness of perception, skill in argument, and
elegance of diction, Lord Stowell has seldom if ever been surpassed. And
yet it may be said of Marshall that, in the strength and clearness of
his conceptions, in the massive force and directness of his reasoning,
and in the absolute independence and fearlessness with which he
announced his conclusions, he presents a combination of qualities which
not only does not suffer by any comparison, but which was also
peculiarly his own.
Mr. Justice Miller once declared that the Supreme Court of the United
States was, "so far as ordinary forms of power are concerned, by far the
feeblest branch or department of the Government. It must rely," he
added, "upon the confidence and respect of the public for its just
weight and influence, and it may be confidently asserted that neither
with the people, nor with the country at large, nor with the other
branches of the government, has there ever been found wanting that
respect and confidence." The circumstance that this statement of the
learned justice, himself one of the brightest ornaments of the tribunal
of which he spoke, has been received with general assent, affords the
strongest proof that the successors of the Great Chief Justice and his
associates have in no way fallen short of the measure of their trust;
for, no matter how deeply the court may as an institution have been
planted in the affections of the people, and no matter how important it
may be to the operation of our system of government, its position and
influence could not have been preserved had its members been wanting
either in character, in conduct, or in attainments.
AUTHORITIES.
Chief Justice Marshall: an address by Mr. Justice Story; Eulogy on the
life and character of John Marshall, by Horace Binney; John Marshall, by
Allan B. Magruder (American Statesmen Series); The Development of the
Constitution as influenced by Chief Justice Marshall, by Henry
Hitchcock; John Marshall, by J.B. Thayer; The Supreme Court of the
United States, by W.W. Willoughby; John Marshall, by C.F. Libby; Chief
Justice Marshall, by John F. Dillon; Mr. Justice Bradley, Century
Magazine, December, 1889; and cases in the Reports of the Supreme Court
of the United States as follows: Ware _v_. Hylton, 3 Dallas, 199;
Marbury _v_. Madison, 1 Cranch, 137; Cohens _v_. Virginia, 6 Wheaton,
264; McCulloch _v_. Maryland, 4 Wheaton, 316, 421; Gibbons _v_. Ogden, 9
Wheaton, 1; Schooner Exchange _v_. McFaddon, 7 Cranch, 116; Foster _v_.
Neilson, 2 Peters, 253; American Insurance Co. _v_. Canter, I Peters,
511; U.S. _v_. Percheman, 7 Peters, 51; Johnson v. McIntosh, 8 Wheaton,
543; The Antelope, 10 Wheaton, 66; 11 Wheaton, 413; The Gran Para, 7
Wheaton, 471; The Venus, 8 Cranch, 253, 299; The Commercen, 1 Wheaton,
382; Church _v_. Hubbart, 2 Cranch, 187; Rose _v_. Himely, 4 Cranch,
241; Brown _v_. United States, 8 Cranch, 110.
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