part in rescuing their country from the ruin it threatens.

"All minor considerations should be waived; the lines of subdivision

between parties, if not absolutely effaced, should at least be convened

for a time; and the great division between the friends of peace & the

advocates of war ought alone to remain. It is an object of such

magnitude as to give to almost every other, comparative insignificance;

and all who wish peace ought to unite in the means which may facilitate

its attainment, whatever may have been their differences of opinion on

other points."[113]

Marshall proceeds to analyze the causes of hostilities. These, he

contends, were Madison's subserviency to France and the base duplicity

of Napoleon. The British Government and American Federalists had, from

the first, asserted that the Emperor's revocation of the Berlin and

Milan Decrees was a mere trick to entrap that credulous French partisan,

Madison; and this they maintained with ever-increasing evidence to

support them. For, in spite of Napoleon's friendly words, American ships

were still seized by the French as well as by the British.

In response to the demand of Joel Barlow, the new American Minister to

France, for a forthright statement as to whether the obnoxious decrees

against neutral commerce had or had not been revoked as to the United

States, the French Foreign Minister delivered to Barlow a new decree.

This document, called "The Decree of St. Cloud," declared that the

former edicts of Napoleon, of which the American Government complained,

"are definitively, and to date from the 1st day of November last [1810],

considered as not having existed [_non avenus_] in regard to American

vessels." The "decree" was dated April 28, 1811, yet it was handed to

Barlow on May 10, 1812. It expressly stated, moreover, that Napoleon

issued it because the American Congress had, by the Act of May 2, 1811,

prohibited "the vessels and merchandise of Great Britain ... from

entering into the ports of the United States."[114]

General John Armstrong, the American Minister who preceded Barlow, never

had heard of this decree; it had not been transmitted to the French

Minister at Washington; it had not been made public in any way. It was a

ruse, declared the Federalists when news of it reached America--a cheap

and tawdry trick to save Madison's face, a palpable falsehood, a clumsy

afterthought. So also asserted Robert Smith, and so he wrote to the

Chief Justice.

Marshall agreed with the fallen Baltimore politician. Continuing his

letter to Smith, the longest and most unreserved he ever wrote, except

to Washington and to Lee when on the French Mission,[115] the Chief

Justice said: "The view you take of the edict purporting to bear date of

the 28^{th.} of April 1811 appears to me to be perfectly correct ... I

am astonished, if in these times any thing ought to astonish, that the

same impression is not made on all." Marshall puts many questions based

on dates, for the purpose of exposing the fraudulent nature of the

French decree and continues:

"Had France felt for the United States any portion of that respect to

which our real importance entitles us, would she have failed to give

this proof of it? But regardless of the assertion made by the President

in his Proclamation of the 2^{d.} of Nov^{r.} 1810, regardless of the

communications made by the Executive to the Legislature, regardless of

the acts of Congress, and regardless of the propositions which we have

invariably maintained in our diplomatic intercourse with Great Britain,

the Emperor has given a date to his decree, & has assigned a motive for

its enactment, which in express terms contradict every assertion made by

the American nation throughout all the departments of its government, &

remove the foundation on which its whole system has been erected.

"The motive for this offensive & contemptuous proceeding cannot be to

rescue himself from the imputation of continuing to enforce his decrees

after their formal repeal because this imputation is precisely as

applicable to a repeal dated the 28^{th.} of April 1811 as to one dated

the 1^{st} of November 1810, since the execution of those decrees has

continued after the one date as well as after the other. Why then is

this obvious fabrication such as we find it? Why has M^{r.} Barlow been

unable to obtain a paper which might consult the honor & spare the

feelings of his government? The answer is not to be disguised. Bonaparte

does not sufficiently respect us to exhibit for our sake, to France, to

America, to Britain, or to the world, any evidence of his having receded

one step from the position he had taken.

"He could not be prevailed on, even after we had done all he required,

to soften any one of his acts so far as to give it the appearance of his

having advanced one step to meet us. That this step, or rather the

appearance of having taken it, might save our reputation was regarded as

dust in the balance. Even now, after our solemn & repeated assertions

that our discrimination between the belligerents is founded altogether

on a first advance of France--on a decisive & unequivocal repeal of all

her obnoxious decrees; after we have engaged in a war of the most

calamitous character, avowedly, because France had repealed those

decrees, the Emperor scorns to countenance the assertion or to leave it

uncontradicted.

"He avers to ourselves, to our selected enemy, & to the world, that,

whatever pretexts we may assign for our conduct, he has in fact ceded

nothing, he has made no advance, he stands on his original ground & we

have marched up to it. We have submitted, completely submitted; & he

will not leave us the poor consolation of concealing that submission

from ourselves. But not even our submission has obtained relief. His

cruizers still continue to capture, sink, burn & destroy.

"I cannot contemplate this subject without excessive mortification as

well at the contempt with which we are treated as at the infatuation of

my countrymen. It is not however for me to indulge these feelings though

I cannot so entirely suppress them as not sometimes though rarely to

allow them a place in a private letter." Marshall assures Smith that he

has "read with attention and approbation" the paper sent him and will

see to its "republication."[116]

From reading Marshall's letter without a knowledge of the facts, one

could not possibly infer that America ever had been wronged by the Power

with which we were then at war. All the strength of his logical and

analytical mind is brought to bear upon the date and motives of

Napoleon's last decree. He wrote in the tone and style, and with the

controversial ability of his state papers, when at the head of the Adams

Cabinet. But had the British Foreign Secretary guided his pen, his

indictment of France and America could not have been more unsparing. His

letter to Smith was a call to peace advocates and British partisans to

combine to end the war by overthrowing the Administration.

This unfortunate letter was written during the long period between the

adjournment of the Supreme Court in March, 1812, and its next session in

February of the following year. Marshall's sentiments are in sharp

contrast with those of Joseph Story, whose letters, written from his

Massachusetts home, strongly condemn those who were openly opposing the

war. "The present," he writes, "was the last occasion which patriotism

ought to have sought to create divisions."[117]

Apparently the Administration did not know of Marshall's real feelings.

Immediately after the declaration of war, Monroe, who succeeded Smith as

Secretary of State, had sent his old personal friend, the Chief

Justice, some documents relating to the war. If Marshall had been

uninformed as to the causes that drove the United States to take

militant action, these papers supplied that information. In

acknowledging receipt of them, he wrote Monroe:

"On my return to day from my farm where I pass a considerable portion of

my time in _laborious relaxation_, I found a copy of the message of the

President of the 1^{st} inst accompanied by the report of the Committee

of foreign relations & the declaration of war against Great Britain,

under cover from you.

"Permit me to subjoin to my thanks for this mark of your attention my

fervent wish that this momentous measure may, in its operation on the

interest & honor of our country, disappoint only its enemies. Whether my

prayer be heard or not I shall remain with respectful esteem," etc.[118]

Cold as this letter was, and capable as it was of double interpretation,

to the men sorely pressed by the immediate exigencies of combat, it gave

no inkling that the Chief Justice of the United States was at that very

moment not only in close sympathy with the peace party, but was actually

encouraging that party in its efforts to end the war.[119]

Just at this time, Marshall must have longed for seclusion, and, by a

lucky chance, it was afforded him. One of the earliest and most

beneficial effects of the Non-Importation, Embargo, and Non-Intercourse

laws that preceded the war, was the heavily increased migration from the

seaboard States to the territories beyond the Alleghanies. The dramatic

story of Burr's adventures and designs had reached every ear and had

turned toward the Western country the eyes of the poor, the adventurous,

the aspiring; already thousands of settlers were taking up the new lands

over the mountains. Thus came a practical consideration of improved

means of travel and transportation. Fresh interest in the use of

waterways was given by Fulton's invention, which seized upon the

imagination of men. The possibilities of steam navigation were in the

minds of all who observed the expansion of the country and the growth of

domestic commerce.

Before the outbreak of war, the Legislature of Virginia passed an act

appointing commissioners "for the purpose of viewing certain rivers

within this Commonwealth,"[120] and Marshall was made the head of this

body of investigators. Nothing could have pleased him more. It was

practical work on a matter that interested him profoundly, and the

renewal of a subject which he had entertained since his young

manhood.[121]

This tour of observation promised to be full of variety and adventure,

tinged with danger, into forests, over mountains, and along streams and

rivers not yet thoroughly explored. For a short time Marshall would

again live over the days of his boyhood. Most inviting of all, he would

get far away from talk or thought of the detested war. Whether the

Presidential scheming in his behalf bore fruit or withered, his absence

in the wilderness was an ideal preparation to meet either outcome.

In his fifty-seventh year Marshall set out at the head of the

expedition, and a thorough piece of work he did. With chain and spirit

level the route was carefully surveyed from Lynchburg to the Ohio.

Sometimes progress was made slowly and with the utmost labor. In places

the scenes were "awful and discouraging."

The elaborate report which the commission submitted to the Legislature

was written by Marshall. It reads, says the surveyor of this division of

the Chesapeake and Ohio Railway,[122] "as an account of that survey of

1869, when I pulled a chain down the rugged banks of New River."

Practicable sections were accurately pointed out and the methods by

which they could best be utilized were recommended with particular care.

Marshall's report is alive with far-seeing and statesmanlike

suggestions. He thinks, in 1812, that steamboats can be run successfully

on the New River, but fears that the expense will be too great. The

velocity of the current gives him some anxiety, but "the currents of the

Hudson, of the Mohawk, and of the Mississippi, are very strong; and ...

a practice so entirely novel as the use of steam in navigation, will

probably receive great improvement."

The expense of the undertaking must, he says, depend on the use to be

made of the route. Should the intention be only to assist the local

traffic of the "upper country down the James river," the expense would

not be great. But, "if the views of the legislature shall extend to a

free commercial intercourse with the western states," the route must

compete with others then existing "or that may be opened." In that case

"no improvement ought to be undertaken but with a determination to make

it complete and effectual." If this were done, the commerce of Kentucky,

Ohio, and even a part of Southwestern Pennsylvania would pour through

Virginia to the Atlantic States. This was a rich prize which other

States were exerting themselves to capture. Moreover, such "commercial

intercourse" would bind Virginia to the growing West by "strong ties" of

"friendly sentiments," and these were above price. "In that mysterious

future which is in reserve, and is yet hidden from us, events may occur

to render" such a community of interest and mutual regard "too valuable

to be estimated in dollars and cents."

Marshall pictures the growth of the West, "that extensive and fertile

country ... increasing in wealth and population with a rapidity which

baffles calculation." Not only would Virginia profit by opening a great

trade route to the West, but the Nation would be vastly benefited.

"Every measure which tends to cement more closely the union of the

eastern with the western states" would be invaluable to the whole

country. The military uses of "this central channel of communication"

were highly important: "For the want of it, in the course of the last

autumn, government was reduced to the necessity of transporting arms in

waggons from Richmond to the falls of the Great Kanawha," and "a similar

necessity may often occur."[123]

When Marshall returned to Richmond, he found the country depressed and

in turmoil. The war had begun dismally for the Americans. Our want of

military equipment and training was incredible and assured those

disasters that quickly fell upon us. The Federalist opposition to the

war grew ever bolder, ever more bitter. The Massachusetts House of

Representatives issued an "Address" to the people, urging the

organization of a "_peace party_," adjuring "loud and deep ...

disapprobation of this war," and demanding that nobody enlist in the

army.[124] Pamphlets were widely circulated, abusing the American

Government and upholding the British cause. The ablest of these, "Mr.

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

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

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

British impressment was the pursuance of a sound policy; the British

doctrine--once a British subject, always a British subject--was

unassailable. The Orders in Council were just; the execution of them

"moderation" itself. On every point, in short, the British Government

was right; the French, diabolical; the American, contemptible and wrong.

How trivial America's complaints, even if there was a real basis for

them, in view of Great Britain's unselfish struggle against "the

gigantic dominion of France."

If that Power, "swayed" by that satanic genius, Napoleon, should win,

would she not take Nova Scotia, Canada, Louisiana, the Antilles,

Florida, South America? After these conquests, would not the United

States, "the only remaining republic," be conquered. Most probably. What

then ought America to do?" In war offensive and unjust, the citizens are

not only obliged not to take part, but by the laws of God, and of civil

society, they are bound to abstain." What were the rights of citizens in

war-time? To oppose the war by tongue and pen, if they thought the war

to be wrong, and to refuse to serve if called "contrary to the

Constitution."[125]

Such was the Federalism of 1812-15, such the arguments that would have

been urged for the election of Marshall had he been chosen as the peace

candidate. But the peace Republicans of New York nominated the able,

cunning, and politically corrupt De Witt Clinton; and this man, who had

assured the Federalists that he favored an "honourable peace" with

England,[126] was endorsed by a Federalist caucus as the anti-war

standard-bearer,[127] though not without a swirl of acrimony and

dissension.

But for the immense efforts of Clinton to secure the nomination, and the

desire of the Federalists and all conservatives that Marshall should

continue as Chief Justice,[128] it is possible that he might have been

named as the opponent of Madison in the Presidential contest of 1812. "I

am far enough from desiring Clinton for President of the United States,"

wrote Pickering in the preceding July; "I would infinitely prefer

another Virginian--if Judge Marshall could be the man."[129]

Marshall surely would have done better than Clinton, who, however,

carried New York, New Jersey, Delaware, Maryland, and all the New

England States except Vermont. The mercantile classes would have rallied

to Marshall's standard more enthusiastically than to Clinton's. The

lawyers generally would have worked hard for him. The Federalists, who

accepted Clinton with repugnance, would have exerted themselves to the

utmost for Marshall, the ideal representative of Federalism. He was

personally very strong in North Carolina; the capture of Pennsylvania

might have been possible;[130] Vermont might have given him her votes.

The Federalist resistance to the war grew more determined as the months

wore on. Throughout New England the men of wealth, nearly all of whom

were Federalists, declined to subscribe to the Government loans.[131]

The Governors of the New England States refused to aid the National

Government with the militia.[132] In Congress the Federalists were

obstructing war measures and embarrassing the Government in every way

their ingenuity could devise. One method was to force the Administration

to tell the truth about Napoleon's pretended revocation of his obnoxious

decree. A resolution asking the President to inform the House "when, by

whom, and in what manner, the first intelligence was given to this

Government" of the St. Cloud Decree, was offered by Daniel Webster,[133]

who had been elected to Congress from New Hampshire as the fiercest

youthful antagonist of the war in his State.[134] The Republicans

agreed, and Webster's resolution was passed by a vote of 137 yeas to

only 26 nays.[135]

In compliance the President transmitted a long report. It was signed by

the Secretary of State, James Monroe, but bears the imprint of Madison's

lucid mind. The report states the facts upon which Congress was

compelled to declare war and demonstrates that the Decree of St. Cloud

had nothing to do with our militant action, since it was not received

until more than a month after our declaration of war. Then follow

several clear and brilliant paragraphs setting forth the American view

of the causes and purposes of the war.[136]

Timothy Pickering was not now in the Senate. The Republican success in

Massachusetts at the State election of 1810 had given the Legislature to

that party,[137] and the pugnacious Federalist leader was left at home.

There he raged and intrigued and wrote reams of letters. Monroe's report

lent new fury to his always burning wrath, and he sent that document,

with his malediction upon it, to John Marshall at Richmond. In reply the

Chief Justice said that the report "contains a labored apology for

France but none for ourselves. It furnishes no reason for our tame

unmurmuring acquiescence under the double insult of withholding this

paper [Decree of St. Cloud] from us & declaring in our face that it has

been put in our possession.

"The report is silent on another subject of still deeper interest. It

leaves unnoticed the fact that the Berlin & Milan decrees were certainly

not repealed by that insidious decree of April since it had never been

communicated to the French courts and cruizers, & since their cruizers

had at a period subsequent to the pretended date of that decree

received orders to continue to execute the offensive decrees on American

vessels.

"The report manifests no sensibility at the disgraceful circumstances

which tend strongly to prove that this paper was fabricated to satisfy

the importunities of Mr. Barlow, was antedated to suit French purposes;

nor at the contempt manifested for the feelings of Americans and their

government, by not deigning so to antedate it as to save the credit of

our Administration by giving some plausibility to their assertion that

the repeal had taken place on the 1^{st} of Nov^r--But this is a subject

with which I dare not trust myself."

The plight of the American land forces, the splendid and unrivaled

victories of the American Navy, apparently concerned Marshall not at

all. His eyes were turned toward Europe; his ears strained to catch the

sounds from foreign battle-fields.

"I look with anxious solicitude--with mingled hope & fear," he

continues, "to the great events which are taking place in the north of

Germany. It appears probable that a great battle will be fought on or

near the Elbe & never had the world more at stake than will probably

depend on that battle.

"Your opinions had led me to hope that there was some prospect for a

particular peace for ourselves. My own judgement, could I trust it,

would tell me that peace or war will be determined by the events in

Europe."[138]

[Illustration: Tim Pickering]

The "great battle" which Marshall foresaw had been fought nearly eight

weeks before his letter was written. Napoleon had been crushingly

defeated at Leipzig in October, 1813, and the British, Prussian, and

other armies which Great Britain had combined against him, were already

invading France. When, later, the news of this arrived in America, it

was hailed by the Federalists with extravagant rejoicings.[139]

Secession, if the war were continued, now became the purpose of the more

determined Federalist leaders. It was hopeless to keep up the struggle,

they said. The Administration had precipitated hostilities without

reason or right, without conscience or sense.[140] The people never had

favored this wretched conflict; and now the tyrannical Government,

failing to secure volunteers, had resorted to conscription--an

"infamous" expedient resorted to in brutal violation of the

Constitution.[141] So came the Hartford Convention which the cool wisdom

of George Cabot saved from proclaiming secession.[142]

Of the two pretenses for war against Great Britain, the Federalists

alleged that one had been removed even before we declared war, and that

only the false and shallow excuse of British impressment of American

seamen remained. Madison and Monroe recognized this as the one great

remaining issue, and an Administration pamphlet was published asserting

the reason and justice of the American position. This position was that

men of every country have a natural right to remove to another land and

there become citizens or subjects, entitled to the protection of the

government of the nation of their adoption. The British principle, on

the contrary, was that British subjects could never thus expatriate

themselves, and that, if they did so, the British Government could seize

them wherever found, and by force compel them to serve the Empire in any

manner the Government chose to direct.

Monroe's brother-in-law, George Hay, still the United States Attorney

for the District of Virginia, was selected to write the exposition of

the American view. It seems probable that his manuscript was carefully

revised by Madison and Monroe, and perhaps by Jefferson.[143] Certainly

Hay stated with singular precision the views of the great Republican

triumvirate. The pamphlet was entitled "A Treatise on Expatriation." He

began: "I hold in utter reprobation the idea that a man is bound by an

obligation, permanent and unalterable, to the government of a country

which he has abandoned and his allegiance to which he has solemnly

adjured."[144]

Immediately John Lowell answered.[145] Nothing keener and more spirited

ever came from the pen of that gifted man. "The presidential

pamphleteer," as Lowell called Hay, ignored the law. The maxim, once a

subject always a subject, was as true of America as of Britain. Had not

Ellsworth, when Chief Justice, so decided in the famous case of Isaac

Williams?[146] Yet Hay sneered at the opinion of that distinguished

jurist.[147]

Pickering joyfully dispatched Lowell's brochure to Marshall, who lost

not a moment in writing of his admiration. "I had yesterday the

pleasure of receiving your letter of the 8th accompanying M^r Lowell's

very masterly review of the treatise on expatriation. I have read it

with great pleasure, & thank you very sincerely for this mark of your

recollection.

"Could I have ever entertained doubts on the subject, this review would

certainly have removed them. Mingled with much pungent raillery is a

solidity of argument and an array of authority which in my judgement is

entirely conclusive. But in truth it is a question upon which I never

entertained a scintilla of doubt; and have never yet heard an argument

which ought to excite a doubt in any sound and reflecting mind. It will

be to every thinking American a most afflicting circumstance, should our

government on a principle so completely rejected by the world proceed to

the execution of unfortunate, of honorable, and of innocent men."[148]

Astonishing and repellent as these words now appear, they expressed the

views of every Federalist lawyer in America. The doctrine of perpetual

allegiance was indeed then held and practiced by every government except

our own,[149] nor was it rejected by the United States until the

Administration became Republican. Marshall, announcing the opinion of

the Supreme Court in 1804, had held that an alien could take lands in

New Jersey because he had lived in that State when, in 1776, the

Legislature passed a law making all residents citizens.[150] Thus he had

declared that an American citizen did not cease to be such because he

had become the subject of a foreign power. Four years later, in another

opinion involving expatriation, he had stated the law to be that a

British subject, born in England before 1775, could not take, by devise,

lands in Maryland, the statute of that State forbidding aliens from thus

acquiring property there.[151] In both these cases, however, Marshall

refrained from expressly declaring in terms against the American

doctrine.

Even as late as 1821 the Chief Justice undoubtedly retained his opinion

that the right of expatriation did not exist,[152] although he did not

say so in express terms. But in Marshall's letter on Lowell's pamphlet

he flatly avows his belief in the principle of perpetual allegiance, any

direct expression on which he so carefully avoided when deciding cases

involving it.

Thus the record shows that John Marshall was as bitterly opposed to the

War of 1812 as was Pickering or Otis or Lowell. So entirely had he

become one of "the aristocracy of talents of reputation, & of property,"

as Plumer, in 1804, had so accurately styled the class of which he

himself was then a member,[153] that Marshall looked upon all but one

subject then before the people with the eyes of confirmed reaction. That

subject was Nationalism. To that supreme cause he was devoted with all

the passion of his deep and powerful nature; and in the service of that

cause he was soon to do much more than he had already performed.

Our second war with Great Britain accomplished none of the tangible and

immediate objects for which it was fought. The British refused to

abandon "the right" of impressment; or to disclaim the British

sovereignty of the oceans whenever they chose to assert it; or to pay a

farthing for their spoliation of American commerce. On the other hand,

the British did not secure one of their demands.[154] The peace treaty

did little more than to end hostilities.

But the war achieved an inestimable good--it de-Europeanized America. It

put an end to our thinking and feeling only in European terms and

emotions. It developed the spirit of the new America, born since our

political independence had been achieved, and now for the first time

emancipated from the intellectual and spiritual sovereignty of the Old

World. It had revealed to this purely American generation a

consciousness of its own strength; it could exult in the fact that at

last America had dared to fight.

The American Navy, ship for ship, officer for officer, man for man, had

proved itself superior to the British Navy, the very name of which had

hitherto been mentioned only in terror or admiration of its

unconquerable might. In the end, raw and untrained American troops had

beaten British regulars. American riflemen of the West and South had

overwhelmed the flower of all the armies of Europe. An American frontier

officer, Andrew Jackson, had easily outwitted some of Great Britain's

ablest and most experienced professional generals. In short, on land and

sea America had stood up to, had really beaten, the tremendous Power

that had overthrown the mighty Napoleon.

Such were the feelings and thoughts of that Young America which had come

into being since John Marshall had put aside his Revolutionary uniform

and arms. And in terms very much like those of the foregoing paragraph

the American people generally expressed their sentiments.

Moreover, the Embargo, the Non-Intercourse and Non-Importation Acts, the

British blockades, the war itself, had revolutionized the country

economically and socially. American manufacturing was firmly

established. Land travel and land traffic grew to proportions never

before imagined, never before desired. The people of distant sections

became acquainted.

The eyes of all Americans, except those of the aged or ageing, were

turned from across the Atlantic Ocean toward the boundless, the alluring

West--their thoughts diverted from the commotions of Europe and the

historic antagonism of foreign nations, to the economic conquest of a

limitless and virgin empire and to the development of incalculable and

untouched resources, all American and all their own.

The migration to the West, which had been increasing for years, now

became almost a folk movement. The Eastern States were drained of their

young men and women. Some towns were almost depopulated.[155] And these

hosts of settlers carried into wilderness and prairie a spirit and pride

that had not been seen or felt in America since the time of the

Revolution. But their high hopes were to be quickly turned into despair,

their pride into ashes; for a condition was speedily to develop that

would engulf them in disaster. It was this situation which was to call

forth some of the greatest of Marshall's Constitutional opinions. This

forbidding future, however, was foreseen by none of that vast throng of

home-seekers crowding every route to the "Western Country," in the year

of 1815. Only the rosiest dreams were theirs and the spirited

consciousness that they were Americans, able to accomplish all things,

even the impossible.

It was then a new world in which John Marshall found himself, when, in

his sixtieth year, the war which he so abhorred came to an end. A state

of things surrounded him little to his liking and yet soon to force from

him the exercise of the noblest judicial statesmanship in American

history. From the extreme independence of this new period, the intense

and sudden Nationalism of the war, the ideas of local sovereignty

rekindled by the New England Federalists at the dying fires that

Jefferson and the Republicans had lighted in 1798, and from the play of

conflicting interests came a reaction against Nationalism which it was

Marshall's high mission to check and to turn into channels of National

power, National safety, and National well-being.

FOOTNOTES:

[1] "The navy of Britain is our shield." (Pickering: _Open Letter_ [Feb.

16, 1808] _to Governor James Sullivan_, 8; _infra_, 5, 9-10, 25-26,

45-46.)

[2] _Diary and Letters of Gouverneur Morris_: Morris, II, 548.

[3] Jefferson to D'Ivernois, Feb. 6, 1795, _Works of Thomas Jefferson_:

Ford, VIII, 165.

[4] Jefferson to Short, Jan. 3, 1793, _ib._ VII, 203; same to Mason,

Feb. 4, 1791, _ib._ VI, 185.

[5] See vol. II, 354, of this work.

[6] _Ib._ 133-39.

[7] The Fairfax transaction.

[8] The phrase used by the Federalists to designate the opponents of

democracy.

[9] See vol. II, 24-27, 92-96, 106-07, 126-28, of this work.

[10] Ames to Dwight, Oct. 31, 1803, _Works of Fisher Ames_: Ames, I,

330; and see Ames to Gore, Nov. 16, 1803, _ib._ 332; also Ames to

Quincy, Feb. 12, 1806, _ib._ 360.

[11] Rutledge to Otis, July 29, 1806, Morison: _Life and Letters of

Harrison Gray Otis_, I, 282.

[12] The student should examine the letters of Federalists collected in

Henry Adams's _New-England Federalism_; those in the _Life and

Correspondence of Rufus King_; in Lodge's _Life and Letters of George

Cabot_; in the _Works of Fisher Ames_ and in Morison's _Otis_.

[13] See Adams: _History of the United States_, IV, 29.

[14] Once in a long while an impartial view was expressed: "I think

myself sometimes in an Hospital of Lunaticks, when I hear some of our

Politicians eulogizing Bonaparte because he humbles the English; &

others worshipping the latter, under an Idea that they will shelter us,

& take us under the Shadow of their Wings. They would join, rather, to

deal us away like Cattle." (Peters to Pickering, Feb. 4, 1807, Pickering

MSS. Mass. Hist. Soc.)

[15] See Harrowby's Circular, Aug. 9, 1804, _American State Papers,

Foreign Relations_, III, 266.

[16] See Hawkesbury's Instructions, Aug. 17, 1805, _ib._

[17] Fox to Monroe, April 8 and May 16, 1806, _ib._ 267.

[18] The Berlin Decree, Nov. 21, 1806, _ib._ 290-91.

[19] Orders in Council, Jan. 7 and Nov. 11, 1807, _Am. State Papers,

For. Rel._ III, 267-73; and see Channing: _Jeffersonian System_, 199.

[20] Dec. 17, 1807, _Am. State Papers, For. Rel._ III, 290.

[21] Adams: _U.S._ V, 31.

[22] "England's naval power stood at a height never reached before or

since by that of any other nation. On every sea her navies rode, not

only triumphant, but with none to dispute their sway." (Roosevelt:

_Naval War of 1812_, 22.)

[23] See Report, Secretary of State, July 6, 1812, _Am. State Papers,

For. Rel._ III, 583-85.

"These decrees and orders, taken together, want little of amounting to a

declaration that every neutral vessel found on the high seas, whatsoever

be her cargo, and whatsoever foreign port be that of her departure or

destination, shall be deemed lawful prize." (Jefferson to Congress,

Special Message, March 17, 1808, _Works:_ Ford, XI, 20.)

"The only mode by which either of them [the European belligerents] could

further annoy the other ... was by inflicting ... the torments of

starvation. This the contending parties sought to accomplish by putting

an end to all trade with the other nation." (Channing: _Jeff. System_,

169.)

[24] Theodore Roosevelt, who gave this matter very careful study, says

that at least 20,000 American seamen were impressed. (Roosevelt,

footnote to 42.)

"Hundreds of American citizens had been taken by force from under the

American flag, some of whom were already lying beneath the waters off

Cape Trafalgar." (Adams: _U. S._ III, 202.)

See also Babcock: _Rise of American Nationality_, 76-77; and Jefferson

to Crawford, Feb. 11, 1815, _Works_: Ford, XI, 451.

[25] See Channing: _Jeff. System_, 184-94. The principal works on the

War of 1812 are, of course, by Henry Adams and by Alfred Mahan. But

these are very extended. The excellent treatments of that period are the

_Jeffersonian System_, by Edward Channing, and _Rise of American

Nationality_, by Kendric Charles Babcock, and _Life and Letters of

Harrison Gray Otis_, by Samuel Eliot Morison. The latter work contains

many valuable letters hitherto unpublished.

[26] But see Jefferson to Madison, Aug. 27, 1805, _Works_: Ford, X,

172-73; same to Monroe, May 4, 1806, ib. 262-63; same to same, Oct. 26,

1806, _ib._ 296-97; same to Lincoln, June 25, 1806, _ib._ 272; also see

Adams: _U.S._ III, 75. While these letters speak of a temporary alliance

with Great Britain, Jefferson makes it clear that they are merely

diplomatic maneuvers, and that, if an arrangement was made, a heavy

price must be paid for America's coöperation.

Jefferson's letters, in general, display rancorous hostility to Great

Britain. See, for example, Jefferson to Paine, Sept. 6, 1807, _Works_:

Ford, X, 493; same to Leib, June 23, 1808, _ib._ XI, 34-35; same to

Meigs, Sept. 18, 1813, _ib._ 334-35; same to Monroe, Jan. 1, 1815, _ib._

443.

[27] Jefferson to Dearborn, July 16, 1810, _ib._ 144.

[28] _Annals_, 9th Cong. 1st Sess. 1259-62; also see "An Act to Prohibit

the Importation of Certain Goods, Wares, and Merchandise," chap. 29,

1806, _Laws of the United States_, IV, 36-38.

[29] See vol. III, 475-76, of this work.

[30] Jefferson's Proclamation, July 2, 1807, _Works_: Ford, X, 434-47;

and _Messages and Papers of the Presidents:_ Richardson, I, 421-24.

[31] "This country has never been in such a state of excitement since

the battle of Lexington." (Jefferson to Bowdoin, July 10, 1807, _Works_:

Ford, X, 454; same to De Nemours, July 14, 1807, _ib._ 460.)

For Jefferson's interpretation of Great Britain's larger motive for

perpetrating the Chesapeake crime, see Jefferson to Paine, Sept. 6,

1807, _ib._ 493.

[32] Adams: _U.S._ IV, 38.

[33] Lowell: _Peace Without Dishonor--War Without Hope_: by "A Yankee

Farmer," 8. The author of this pamphlet was the son of one of the new

Federal judges appointed by Adams under the Federalist Judiciary Act of

1801.

[34] See _Peace Without Dishonor--War Without Hope_, 39-40.

[35] Giles to Monroe, March 4, 1807; Anderson: _William Branch Giles--A

Study in the Politics of Virginia, 1790-1830_, 108.

Thomas Ritchie, in the Richmond Enquirer, properly denounced the New

England Federalist headquarters as a "hot-bed of treason." (_Enquirer_,

Jan. 24 and April 4, 1809, as quoted by Ambler: _Thomas Ritchie--A Study

in Virginia Politics_, 46.)

[36] Adams: _U.S._ IV, 41-44, 54.

[37] Jefferson to Leiper, Aug. 21, 1807, _Works_: Ford, X, 483-84.

Jefferson tenaciously clung to his prejudice against Great Britain: "The

object of England, long obvious, is to claim the ocean as her domain....

We believe no more in Bonaparte's fighting merely for the liberty of the

seas, than in Great Britain's fighting for the liberties of mankind."

(Jefferson to Maury, April 25, 1812, _ib._ XI, 240-41.) He never failed

to accentuate his love for France and his hatred for Napoleon.

[38] "During the present paroxysm of the insanity of Europe, we have

thought it wisest to break off all intercourse with her." (Jefferson to

Armstrong, May 2, 1808, _ib._ 30.)

[39] "Three alternatives alone are to be chosen from. 1. Embargo. 2.

War. 3. Submission and tribute, &, wonderful to tell, the last will not

want advocates." (Jefferson to Lincoln, Nov. 13, 1808, _ib._ 74.)

[40] See Act of December 22, 1807 (_Annals_, 10th Cong. 1st Sess.

2814-15); of January 9, 1808 (_ib._ 2815-17); of March 12, 1808 (_ib._

2839-42); and of April 25, 1808 (_ib._ 2870-74); Treasury Circulars of

May 6 and May 11, 1808 (_Embargo Laws_, 19-20, 21-22); and Jefferson's

letter "to the Governours of Orleans, Georgia, South Carolina,

Massachusetts and New Hampshire," May 6, 1808 (_ib._ 20-21).

Joseph Hopkinson sarcastically wrote: "Bless the Embargo--thrice bless

the Presidents distribution Proclamation, by which his minions are to

judge of the appetites of his subjects, how much food they may

reasonably consume, and who shall supply them ... whether under the

Proclamation and Embargo System, a child may be lawfully born without a

clearing out at the Custom House." (Hopkinson to Pickering, May 25,

1808, Pickering MSS. Mass. Hist. Soc.)

[41] Professor Channing says that "the orders in council had been passed

originally to give English ship-owners a chance to regain some of their

lost business." (Channing: _Jeff. System_, 261.)

[42] Indeed, Napoleon, as soon as he learned of the American Embargo

laws, ordered the seizure of all American ships entering French ports

because their captains or owners had disobeyed these American statutes

and, therefore, surely were aiding the enemy. (Armstrong to Secretary of

State, April 23, postscript of April 25, 1808, _Am. State Papers, For.

Rel._ III, 291.)

[43] Morison: _Otis_, II, 10-12; see also Channing: _Jeff. System_, 183.

[44] _Annals_, 10th Cong. 2d Sess. 22.

The intensity of the interest in the Embargo is illustrated by Giles's

statement in his reply to Hillhouse that it "almost ... banish[ed] every

other topic of conversation." (_Ib._ 94.)

[45] Four years earlier, Pickering had plotted the secession of New

England and enlisted the support of the British Minister to accomplish

it. (See vol. III, chap. VII, of this work.) His wife was an

Englishwoman, the daughter of an officer of the British Navy. (Pickering

and Upham: _Life of Timothy Pickering_, I, 7; and see Pickering to his

wife, Jan. 1, 1808, _ib._ IV, 121.) His nephew had been Consul-General

at London under the Federalist Administrations and was at this time a

merchant in that city. (Pickering to Rose, March 22, 1808, _New-England

Federalism:_ Adams, 370.) Pickering had been, and still was, carrying on

with George Rose, recently British Minister to the United States, a

correspondence all but treasonable. (Morison: _Otis_, II, 6.)

[46] _Annals_, 10th Cong. 2d Sess. 175, 177-78.

[47] _Annals_, 10th Cong. 2d Sess. 193.

[48] _Ib._ 279-82.

[49] Marshall to Pickering, Dec. 19, 1808, Pickering MSS. Mass. Hist.

Soc.

[50] See vol. II, 509-14, of this work.

[51] Morison: _Otis_, II, 3-4.

[52] "The tories of Boston openly threaten insurrection." (Jefferson to

Dearborn, Aug. 9, 1808, _Works_: Ford, XI, 40.) And see Morison: _Otis_,

II, 6; _Life and Correspondence of Rufus King_: King, V, 88; also see

Otis to Quincy, Dec. 15, 1808, Morison: _Otis_, II, 115.

[53] Monroe to Taylor, Jan. 9, 1809, _Branch Historical Papers_, June,

1908, 298.

[54] Adams to Rush, July 25, 1808, _Old Family Letters_, 191-92.

[55] _Annals_, 10th Cong. 2d Sess. III, 1798-1804.

[56] Morison: _Otis_, II, 10. These resolutions denounced "'all those

who shall assist in enforcing on others the arbitrary & unconstitutional

provisions of this [Force Act]' ... as 'enemies to the Constitution of

the United States and of this State, and hostile to the Liberties of the

People.'" (Boston Town Records, 1796-1813, as quoted in _ib._; and see

McMaster: _History of the People of the United States_, III, 328.)

[57] McMaster, III, 329.

[58] McMaster, III, 329-30; and see Morison: _Otis_, II, 4.

The Federalist view was that the "Force Act" and other extreme portions

of the Embargo laws were "so violently and palpably unconstitutional, as

to render a reference to the judiciary absurd"; and that it was "the

inherent right of the people to resist measures fundamentally

inconsistent with the principles of just liberty and the Social

compact." (Hare to Otis, Feb. 10, 1814, Morison: _Otis_, II, 175.)

[59] McMaster, III, 331-32.

[60] Morison: _Otis_, II, 3, 8.

[61] Hanson to Pickering, Jan. 17, 1810, N_.E. Federalism_: Adams, 382.

[62] Humphrey Marshall to Pickering, March 17, 1809, Pickering MSS.

Mass. Hist. Soc.

[63] See vol. III, chap. X, of this work.

[64] 5 Cranch, 133.

[65] _Ib._ 117.

[66] 5 Cranch, 135.

[67] 5 Cranch, 136, 141. (Italics the author's.)

[68] The Legislature of Pennsylvania adopted a resolution, April 3,

1809, proposing an amendment to the National Constitution for the

establishment of an "impartial tribunal" to decide upon controversies

between States and the Nation. (_State Documents on Federal Relations_:

Ames, 46-48.) In reply Virginia insisted that the Supreme Court,

"selected from those ... who are most celebrated for virtue and legal

learning," was the proper tribunal to decide such cases. (_Ib._ 49-50.)

This Nationalist position Virginia reversed within a decade in protest

against Marshall's Nationalist opinions. Virginia's Nationalist

resolution of 1809 was read by Pinkney in his argument of Cohens _vs._

Virginia. (See _infra_, chap. VI.)

[69] See Madison to Snyder, April 13, 1809, _Annals_, 11th Cong. 2d

Sess. 2269; also McMaster, V, 403-06.

[70] _Annals_, 10th Cong. 2d Sess. 1824-30.

[71] Erskine to Smith, April 18 and 19, 1809, _Am. State Papers, For.

Rel._ III, 296.

[72] Adams: _U.S._ V, 73-74; see also McMaster, III, 337.

[73] Adams: _U.S._ V, 87-89, 112.

[74] Proclamation of Aug. 9, 1809, _Am. State Papers, For. Rel._ III,

304.

[75] Tyler: _Letters and Times of the Tylers_, I, 229. For an expression

by Napoleon on this subject, see Adams: _U.S._ V, 137.

[76] See vol. II, 28-29, of this work.

[77] "The appointment of Jackson and the instructions given to him might

well have justified a declaration of war against Great Britain the

moment they were known." (Channing: _Jeff. System_, 237.)

[78] Circular, Nov. 13, 1809, _Am. State Papers, For. Rel._ III, 323;

_Annals_, 11th Cong. 2d Sess. 743.

[79] Canning to Pinkney, Sept. 23, 1808, _Am. State Papers, For. Rel._

III, 230-31.

[80] Story to White, Jan. 17, 1809, _Life and Letters of Joseph Story_:

Story, I, 193-94. There were two letters from Canning to Pinkney, both

dated Sept. 23, 1808. Story probably refers to one printed in the

_Columbian Centinel_, Boston, Jan. 11, 1809.

"It seems as if in New England the federalists were forgetful of all the

motives for union & were ready to destroy the fabric which has been

raised by the wisdom of our fathers. Have they altogether lost the

memory of Washington's farewell address?... The riotous proceedings in

some towns ... no doubt ... are occasioned by the instigation of men,

who keep behind the curtain & yet govern the wires of the puppet shew."

(Story to his brother, Jan. 3, 1809, Story MSS. Mass. Hist. Soc.)

"In New England, and even in New York, there appears a spirit hostile to

the existence of our own government." (Plumer to Gilman, Jan. 24, 1809,

Plumer: _Life of William Plumer_, 368.)

[81] Adams: _U.S._ V, 158.

[82] _Annals_, 11th Cong. 2d Sess. 481.

[83] _Ib._ 943. The resolution was passed over the strenuous resistance

of the Federalists.

[84] Probably that of Madison, July 21, 1808, _Annals_, 10th Cong. 2d

Sess. 1681.

[85] Marshall to Quincy, April 23, 1810, Quincy: _Life of Josiah

Quincy_, 204.

[86] Tyler to Jefferson, May 12, 1810, Tyler: _Tyler_, I, 247; and see

next chapter.

[87] Adams: _U.S._ V, 212-14; and see Morison: _Otis_, II, 18-19.

[88] Turreau, then the French Minister at Washington, thus reported to

his Government: "To-day not only is the separation of New England openly

talked about, but the people of those five States wish for this

separation, pronounce it, openly prepare it, will carry it out under

British protection"; and he suggests that "perhaps the moment has come

for forming a party in favor of France in the Central and Southern

States, whenever those of the North, having given themselves a separate

government under the support of Great Britain, may threaten the

independence of the rest." (Turreau to Champagny, April 20, 1809, as

quoted in Adams: _U.S._ V, 36.)

[89] For account of Jackson's reception in Boston and the effects of it,

see Adams: _U.S._ 215-17, and Morison: _Otis_, 20-22.

[90] On the other hand, Jefferson, out of his bottomless prejudice

against Great Britain, drew venomous abuse of the whole British nation:

"What is to restore order and safety on the ocean?" he wrote; "the death

of George III? Not at all. He is only stupid;... his ministers ...

ephemeral. But his nation is permanent, and it is that which is the

tyrant of the ocean. The principle that force is right, is become the

principle of the nation itself. They would not permit an honest

minister, were accident to bring such an one into power, to relax their

system of lawless piracy." (Jefferson to Rodney, Feb. 10, 1810, _Works_:

Ford, XI, 135-36.)

[91] Champagny, Duke de Cadore, to Armstrong, Aug. 5, 1810 (_Am._ _State

Papers, For. Rel._ III, 386-87), and Proclamation, Nov. 2, 1810 (_ib._

392); and see Adams: _U.S._ V, 303-04.

[92] Adams: _U.S._ V, 346.

[93] Marshall to Pickering, Feb. 22, 1811, Pickering MSS. Mass. Hist.

Soc.

[94] _Annals_, 11th Cong. 3d Sess. 525.

Daniel Webster was also emphatically opposed to the admission of new

States: "Put in a solemn, decided, and spirited Protest against making

new States out of new Territories. Affirm, in direct terms, that New

Hampshire has never agreed to favor political connexions of such

intimate nature, with any people, out of the limits of the U.S. as they

existed at the time of the compact." (Webster to his brother, June 4,

1813, _Letters of Daniel Webster_: Van Tyne, 37.)

[95] _Annals_, 11th Cong. 3d Sess. 542.

[96] _Ib._ 1st and 2d Sess. 579-82.

[97] _Annals_, 12th Cong. 1st Sess. 601; also see Adams: _U.S._ V,

189-90.

[98] Adams: _U.S._ V, 316.

[99] Richardson, I, 499-505; _Am. State Papers, For. Rel._ III, 567-70.

[100] _Annals_, 12th Cong. 1st Sess. 1637. The Federalists who voted for

war were: Joseph Kent of Maryland, James Morgan of New Jersey, and

William M. Richardson of Massachusetts.

Professor Channing thus states the American grievances: "Inciting the

Indians to rebellion, impressing American seamen and making them serve

on British war-ships, closing the ports of Europe to American commerce,

these were the counts in the indictment against the people and

government of Great Britain." (Channing: _Jeff. System_, 260.) See also

_ib._ 268, and Jefferson's brilliant statement of the causes of the war,

Jefferson to Logan, Oct. 3, 1813, _Works_: Ford, XI, 338-39.

"The United States," says Henry Adams, "had a superfluity of only too

good causes for war with Great Britain." (Adams: _Life of Albert

Gallatin_, 445.) Adams emphasizes this: "The United States had the right

to make war on England with or without notice, either for her past

spoliations, her actual blockades, her Orders in Council other than

blockades, her Rule of 1756, her impressments, or her attack on the

'Chesapeake,' not yet redressed,--possibly also for other reasons less

notorious." (Adams: _U.S._ V, 339.) And see Roosevelt, chaps, I and II.

[101] _Annals_, 12th Cong. 1st Sess. 1675-82.

[102] Salem _Gazette_, July 7, 1812, as quoted in Morison: _Otis_, I,

298.

[103] Story to Williams, Aug. 24, 1812, Story, I, 229.

[104] Pickering to Pennington, July 12, 1812, _N.E. Federalism_: Adams,

389.

[105] Of course the National courts were attacked: "Attempts ... are

made ... to break down the Judiciary of the United States through the

newspapers, and mean and miserable insinuations are made to weaken the

authority of its judgments." (Story to Williams, Aug. 3, 1813, Story, I,

247.) And again: "Conspirators, and traitors are enabled to carry on

their purposes almost without check." (Same to same, May 27, 1813, _ib._

244.) Story was lamenting that the National courts had no common-law

jurisdiction. Some months earlier he had implored Nathaniel Williams,

Representative in Congress from Story's district, to "induce Congress

to give the Judicial Courts of the United States power to punish all

crimes ... against the Government.... Do not suffer conspiracies to

destroy the Union." (Same to same, Oct. 8, 1812, _ib._ 243.)

Jefferson thought the people were loyal: "When the questions of

separation and rebellion shall be nakedly proposed ... the Gores and the

Pickerings will find their levees crowded with silk stocking gentry, but

no yeomanry." (Jefferson to Gerry, June 11, 1812, _Works_: Ford, XI,

257.)

[106] Stoddert to McHenry, July 15, 1812, Steiner: _Life and

Correspondence of James McHenry_, 581-83.

[107] "To the Citizens of the United States," in the _Spirit of

Seventy-Six_, July 17, 1812.

[108] Stoddert refers to this person as "Jo Davies." By some this has

been thought to refer to Marshall's brother-in-law, "Jo" Daveiss of

Kentucky. But the latter was killed in the Battle of Tippecanoe,

November 7, 1811.

While the identity of Stoddert's agent cannot be established with

certainty, he probably was one John Davis of Salisbury, England, as

described in the text. "Jo" was then used for John as much as for

Joseph; and Davis was frequently spelled "Davies." A John or "Jo" Davis

or Davies, an Englishman, was a very busy person in America during the

first decade of the nineteenth century. (See Loshe: _Early American

Novel_, 74-77.) Naturally he would have been against the War of 1812,

and he was just the sort of person that an impracticable man like

Stoddert would have chosen for such a mission.

[109] Stoddert to McHenry, July 15, 1812, Steiner, 582.

[110] See King, V, 266.

[111] Adams: _U.S._ V, 375-78.

[112] Smith: _An Address to the People of the United States_, 42-43.

[113] Marshall to Smith, July 27, 1812, Dreer MSS. "American Lawyers,"

Pa. Hist. Soc.

[114] _Am. State Papers, For. Rel._ III, 603; and see Charming: _U.S._

IV, 449.

[115] See vol. II, 243-44, 245-47, of this work.

[116] Marshall to Smith, July 27, 1812, Dreer MSS. "American Lawyers,"

Pa. Hist. Soc.

A single quotation from the letters of Southern Federalists will show

how accurately Marshall interpreted Federalist feeling during the War of

1812: "Heaven grant that ... our own Country may not be found

ultimately, a solitary friend of this great Robber of Nations."

(Tallmadge to McHenry, May 30, 1813, Steiner, 598.) The war had been in

progress more than ten months when these words were written.

[117] Story to Williams, Oct. 8, 1812, Story, I, 243.

[118] Marshall to Monroe, June 25, 1812, Monroe MSS. Lib. Cong.

[119] Marshall, however, was a member of the "Vigilance Committee" of

Richmond, and took an important part in its activities. (_Virginia

Magazine of History and Biography_, VII, 230-31.)

[120] _Report of the Commissioners appointed to view Certain Rivers

within the Commonwealth of Virginia_, 5.

[121] A practicable route for travel and transportation between Virginia

and the regions across the mountains had been a favorite project of

Washington. The Potomac and James River Company, of which Marshall when

a young lawyer had become a stockholder (vol. I, 218, of this work), was

organized partly in furtherance of this project. The idea had remained

active in the minds of public men in Virginia and was, perhaps, the one

subject upon which they substantially agreed.

[122] Much of the course selected by Marshall was adopted in the

building of the Chesapeake and Ohio Railway. In 1869, Collis P.

Huntington made a trip of investigation over part of Marshall's route.

(Nelson: _Address--The Chesapeake and Ohio Railway_, 15.)

[123] _Report of the Commissioners appointed to view Certain Rivers

within the Commonwealth of Virginia_, 38-39.

[124] Niles: _Weekly Register_, II, 418.

[125] Lowell: _Mr. Madison's War_: by "A New England Farmer."

A still better illustration of Federalist hostility to the war and the

Government is found in a letter of Ezekiel Webster to his brother

Daniel: "Let gamblers be made to contribute to the support of this war,

which was declared by men of no better principles than themselves."

(Ezekiel Webster to Daniel Webster, Oct. 29, 1814, Van Tyne, 53.)

Webster here refers to a war tax on playing-cards.

[126] Harper to Lynn, Sept. 25, 1812, Steiner, 584.

[127] See McMaster, IV, 199-200.

[128] Morison: _Otis_, I, 399.

[129] Pickering to Pennington, July 22, 1812, _N.E. Federalism_: Adams,

389.

[130] The vote of Pennsylvania, with those cast for Clinton, would have

elected Marshall.

[131] Babcock, 157; and see Dewey: _Financial History of the United

States_, 133.

[132] For an excellent statement of the conduct of the Federalists at

this time see Morison: _Otis_, II, 53-66. "The militia of Massachusetts,

seventy thousand in enrolment, well-drilled, and well-equipped, was

definitely withdrawn from the service of the United States in September,

1814." (Babcock, 155.) Connecticut did the same thing. (_Ib._ 156.)

[133] _Annals_, 13th Cong. 1st Sess. 302.

[134] See McMaster, IV, 213-14.

[135] _Annals_, 13th Cong. 1st Sess. 302

[136] _Am. State Papers, For. Rel._ III, 609-12.

[137] The Republican victory was caused by the violent British

partisanship of the Federalist leaders. In spite of the distress the

people suffered from the Embargo, they could not, for the moment,

tolerate Federalist opposition to their own country. (See Adams: _U.S._

V, 215.)

[138] Marshall to Pickering, Dec. 11, 1813, Pickering MSS. Mass. Hist

Soc.

[139] Morison: _Otis_, II, 54-56.

[140] "CURSE THIS GOVERNMENT! I would march at 6 days notice for

Washington ... and I would swear upon the _altar_ never to return till

Madison was buried under the ruins of the capitol." (Herbert to Webster,

April 20, 1813, Van Tyne, 27.)

[141] The Federalists frantically opposed conscription. Daniel Webster,

especially, denounced it. "Is this [conscription] ... consistent with

the character of a free Government?... No, Sir.... The Constitution is

libelled, foully libelled. The people of this country have not

established ... such a fabric of despotism....

"Where is it written in the Constitution ... that you may take children

from their parents ... & compel them to fight the battles of any war, in

which the folly or the wickedness of Government may engage it?... Such

an abominable doctrine has no foundation in the Constitution."

Conscription, Webster said, was a gambling device to throw the dice for

blood; and it was a "horrible lottery." "May God, in his compassion,

shield me from ... the enormity of this guilt." (See Webster's speech on

the Conscription Bill delivered in the House of Representatives,

December 9, 1814, Van Tyne, 56-68; see also Curtis: _Life of Daniel

Webster_, I, 138.)

Webster had foretold what he meant to do: "Of course we shall oppose

such usurpation." (Webster to his brother, Oct. 30, 1814, Van Tyne, 54.)

Again: "The conscription has not come up--if it does it will cause a

storm such as was never witnessed here" [in Washington]. (Same to same,

Nov. 29, 1814, _ib._ 55.)

[142] See Morison: _Otis_, II, 78-199. Pickering feared that Cabot's

moderation would prevent the Hartford Convention from taking extreme

measures against the Government. (See Pickering to Lowell, Nov. 7, 1814,

_N.E. Federalism_: Adams, 406.)

[143] Some sentences are paraphrases of expressions by Jefferson on the

same subject. For example: "I hold the right of expatriation to be

inherent in every man by the laws of nature, and incapable of being

rightfully taken from him even by the united will of every other person

in the nation." (Jefferson to Gallatin, June 26, 1806, _Works_: Ford, X,

273.) Again: "Our particular and separate grievance is only the

impressment of our citizens. We must sacrifice the last dollar and drop

of blood to rid us of that badge of slavery." (Jefferson to Crawford,

Feb. 11, 1815, _ib._ XI, 450-51.) This letter was written at Monticello

the very day that the news of peace reached Washington.

[144] Hay: _A Treatise on Expatriation_, 24.

[145] Lowell: _Review of 'A Treatise on Expatriation'_: by "A

Massachusetts Lawyer."

[146] See vol. III, chap. I, of this work.

[147] See _Review of 'A Treatise on Expatriation_,' 6.

[148] Marshall to Pickering, April 11, 1814, Pickering MSS. Mass. Hist.

Soc.

[149] See Channing: _Jeff. System_, 170-71.

[150] M'Ilvaine _vs._ Coxe's Lessee, 4 Cranch, 209.

[151] Dawson's Lessee _vs._ Godfrey, 4 Cranch, 321.

[152] Case of the Santissima Trinidad _et al._, 1 Brockenbrough, 478-87;

and see 7 Wheaton, 283.

[153] Plumer to Livermore, March 4, 1804, Plumer MSS. Lib. Cong.

[154] For example, the British "right" of impressment must be formally

and plainly acknowledged in the treaty; an Indian dominion was to be

established, and the Indian tribes were to be made parties to the

settlements; the free navigation of the Mississippi was to be guaranteed

to British vessels; the right of Americans to fish in Canadian waters

was to be ended. Demands far more extreme were made by the British press

and public. (See McMaster, IV, 260-74; and see especially Morison:

_Otis_, II, 171.)

[155] McMaster, IV, 383-88.