CHAPTER II

MARSHALL AND STORY

Either the office was made for the man or the man for the

office. (George S. Hillard.)

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

Story.)

In the midst of these gay circles my mind is carried to my own

fireside and to my beloved wife. (Marshall.)

Now the man Moses was very meek, above all the men which were

upon the face of the earth. (Numbers XII, 3.)

"It will be difficult to find a character of firmness enough to preserve

his independence on the same bench with Marshall."[156] So wrote Thomas

Jefferson one year after he had ceased to be President. He was

counseling Madison as to the vacancy on the Supreme Bench and one on the

district bench at Richmond, in filling both of which he was, for

personal reasons, feverishly concerned.

We are now to ascend with Marshall the mountain peaks of his career.

Within the decade that followed after the close of our second war with

Great Britain, he performed nearly all of that vast and creative labor,

the lasting results of which have given him that distinctive title, the

Great Chief Justice. During that period he did more than any other one

man ever has done to vitalize the American Constitution; and, in the

performance of that task, his influence over his associates was

unparalleled.[157]

When Justices Chase and Cushing died and their successors Gabriel

Duval[158] and Joseph Story were appointed, the majority of the Supreme

Court, for the first time, became Republican. Yet Marshall continued to

dominate it as fully as when its members were of his own political faith

and views of government.[159] In the whole history of courts there is no

parallel to such supremacy. Not without reason was that tribunal looked

upon and called "Marshall's Court." It is interesting to search for the

sources of his strange power.

These sources are not to be found exclusively in the strength of

Marshall's intellect, surpassing though it was, nor yet in the mere

dominance of his will. Joseph Story was not greatly inferior to Marshall

in mind and far above him in accomplishments, while William Johnson, the

first Justice of the Supreme Court appointed by Jefferson, was as

determined as Marshall and was "strongly imbued with the principles of

southern democracy, bold, independent, eccentric, and sometimes

harsh."[160] Nor did learning give Marshall his commanding influence.

John Jay and Oliver Ellsworth were his superiors in that respect; while

Story so infinitely surpassed him in erudition that, between the two

men, there is nothing but contrast. Indeed, Marshall had no "learning"

at all in the academic sense;[161] we must seek elsewhere for an

explanation of his peculiar influence.

This explanation is, in great part, furnished by Marshall's personality.

The manner of man he was, of course, is best revealed by the

well-authenticated accounts of his daily life. He spent most of his time

at Richmond, for the Supreme Court sat in Washington only a few weeks

each year. He held circuit court at Raleigh as well as at the Virginia

Capital, but the sessions seldom occupied more than a fortnight each. In

Richmond, then, his characteristics were best known; and so striking

were they that time has but little dimmed the memory of them.

Marshall, the Chief Justice, continued to neglect his dress and personal

appearance as much as he did when, as a lawyer, his shabby attire so

often "brought a blush" to the cheeks of his wife,[162] and his manners

were as "lax and lounging" as when Jefferson called them proofs of a

"profound hypocrisy."[163] Although no man in America was less

democratic in his ideas of government, none was more democratic in his

contact with other people. To this easy bonhomie was added a sense of

humor, always quick to appreciate an amusing situation.

When in Richmond, Marshall often did his own marketing and carried home

the purchases he made. The tall, ungainly, negligently clad Chief

Justice, ambling along the street, his arms laden with purchases, was a

familiar sight.[164] He never would hurry, and habitually lingered at

the market-place, chatting with everybody, learning the gossip of the

town, listening to the political talk that in Richmond never ceased, and

no doubt thus catching at first hand the drift of public sentiment.[165]

The humblest and poorest man in Virginia was not more unpretentious than

John Marshall.

No wag was more eager for a joke. One day, as he loitered on the

outskirts of the market, a newcomer in Richmond, who had never seen

Marshall, offered him a small coin to carry home for him a turkey just

purchased. Marshall accepted, and, with the bird under his arm, trudged

behind his employer. The incident sent the city into gales of laughter,

and was so in keeping with Marshall's ways that it has been retold from

one generation to another, and is to-day almost as much alive as

ever.[166] At another time the Chief Justice was taken for the butcher.

He called on a relative's wife who had never met him, and who had not

been told of his plain dress and rustic manners. Her husband wished to

sell a calf and she expected the butcher to call to make the trade. She

saw Marshall approaching, and judging by his appearance that he was the

butcher, she directed the servant to tell him to go to the stable where

the animal was awaiting inspection.[167]

It was Marshall's custom to go early every morning to a farm which he

owned four miles from Richmond. For the exercise he usually walked,

but, when he wished to take something heavy, he would ride. A stranger

coming upon him on the road would have thought him one of the poorer

small planters of the vicinity. He was extremely fond of children and,

if he met one trudging along the road, he would take the child up on the

horse and carry it to its destination. Often he was seen riding into

Richmond from his farm, with one child before and another behind

him.[168]

Bishop Meade met Marshall on one of these morning trips, carrying on

horseback a bag of clover seed.[169] On another, he was seen holding on

the pommel a jug of whiskey which he was taking out to his farmhands.

The cork had come out and he was using his thumb as a stopper.[170] He

was keenly interested in farming, and in 1811 was elected President of

the Richmond Society for Promotion of Agriculture.[171]

The distance from Richmond to Raleigh was, by road, more than one

hundred and seventy miles. Except when he went by stage,[172] as he

seldom did, it must have taken a week to make this journey. He traveled

in a primitive vehicle called a stick gig, drawn by one horse which he

drove himself, seldom taking a servant with him.[173] Making his slow

way through the immense stretches of tar pines and sandy fields, the

Chief Justice doubtless thought out the solution of the problems before

him and the plain, clear, large statements of his conclusions which,

from the bench later, announced not only the law of particular cases,

but fundamental policies of the Nation. His surroundings at every stage

of the trip encouraged just such reflection--the vast stillness, the

deep forests, the long hours, broken only by some accident to gig or

harness, or interrupted for a short time to feed and rest his horse, and

to eat his simple meal.

During these trips, Marshall would become so abstracted that,

apparently, he would forget where he was driving. Once, when near the

plantation of Nathaniel Macon in North Carolina, he drove over a sapling

which became wedged between a wheel and the shaft. One of Macon's

slaves, working in an adjacent field, saw the predicament, hurried to

his assistance, held down the sapling with one hand, and with the other

backed the horse until the gig was free. Marshall tossed the negro a

piece of money and asked him who was his owner. "Marse Nat. Macon," said

the slave. "He is an old friend," said Marshall; "tell him how you have

helped me," giving his name. When the negro told his master, Macon said:

"That was the great Chief Justice Marshall, the biggest lawyer in the

United States." The slave grinned and answered: "Marse Nat., he may be

de bigges' lawyer in de United States, but he ain't got sense enough to

back a gig off a saplin'."[174]

At night he would stop at some log tavern on the route, eat with the

family and other guests, if any were present, and sit before the

fireplace after the meal, talking with all and listening to all like the

simple and humble countryman he appeared to be. Since the minor part of

his time was spent in court, and most of it about Richmond, or on the

road to and from Raleigh, or journeying to his Fauquier County

plantation and the beloved mountains of his youth where he spent the

hottest part of each year, it is doubtful whether any other judge ever

maintained such intimate contact with people in the ordinary walks of

life as did John Marshall.

The Chief Justice always arrived at Raleigh stained and battered from

travel.[175] The town had a population of from three hundred to five

hundred.[176] He was wont to stop at a tavern kept by a man named Cooke

and noted for its want of comfort; but, although the inn got worse year

after year, he still frequented it. Early one morning an acquaintance

saw the Chief Justice go to the woodpile, gather an armful of wood and

return with it to the house. When they met later in the day, the

occurrence was recalled. "Yes," said Marshall, "I suppose it is not

convenient for Mr. Cooke to keep a servant, so I make up my own

fires."[177]

The Chief Justice occupied a small room in which were the following

articles: "A bed, ... two split-bottom chairs, a pine table covered with

grease and ink, a cracked pitcher and broken bowl." The host ate with

his guests and used his fingers instead of fork or knife.[178] When

court adjourned for the day, Marshall would play quoits in the street

before the tavern "with the public street characters of Raleigh," who

were lovers of the game.[179]

He was immensely popular in Raleigh, his familiar manners and the

justice of his decisions appealing with equal force to the bar and

people alike. Writing at the time of the hearing of the Granville

case,[180] John Haywood, then State Treasurer of North Carolina,

testifies: "Judge Marshall ... is greatly respected here, as well on

account of his talents and uprightness as for that sociability and ease

of manner which render all happy and pleased when in his company."[181]

In spite of his sociability, which tempted him, while in Richmond, to

visit taverns and the law offices of his friends, Marshall spent most of

the day in his house or in the big yard adjoining it, for Mrs.

Marshall's affliction increased with time, and the Chief Justice, whose

affection for his wife grew as her illness advanced, kept near her as

much as possible. In Marshall's grounds and near his house were several

great oak and elm trees, beneath which was a spring; to this spot he

would take the papers in cases he had to decide and, sitting on a rustic

bench under the shade, would write many of those great opinions that

have immortalized his name.[182]

Mrs. Marshall's malady was largely a disease of the nervous system and,

at times, it seemingly affected her mind. It was a common thing for the

Chief Justice to get up at any hour of the night and, without putting on

his shoes lest his footfalls might further excite his wife, steal

downstairs and drive away for blocks some wandering animal--a cow, a

pig, a horse--whose sounds had annoyed her.[183] Even upon entering his

house during the daytime, Marshall would take off his shoes and put on

soft slippers in the hall.[184]

She was, of course, unequal to the management of the household. When the

domestic arrangements needed overhauling, Marshall would induce her to

take a long drive with her sister, Mrs. Edward Carrington, or her

daughter, Mrs. Jacquelin B. Harvie, over the still and shaded roads of

Richmond. The carriage out of sight, he would throw off his coat and

vest, roll up his shirt-sleeves, twist a bandanna handkerchief about his

head, and gathering the servants, lead as well as direct them in dusting

the walls and furniture, scrubbing the floors and setting the house in

order.[185]

Numerous incidents of this kind are well authenticated. To this day

Marshall's unselfish devotion to his infirm and distracted wife is

recalled in Richmond. But nobody ever heard the slightest word of

complaint from him; nor did any act or expression of countenance so much

as indicate impatience.

In his letters Marshall never fails to admonish his wife, who seldom if

ever wrote to him, to care for her health. "Yesterday I received

Jacquelin's letter of the 12^{th} informing me that your health was at

present much the same as when I left Richmond," writes Marshall.[186]

"John [Marshall's son] passed through this city a day or two past, &

although I did not see him I had the pleasure of hearing from Mr.

Washington who saw him ... that you were as well as usual."[187] In

another letter Marshall says: "Do my dearest Polly let me hear from you

through someone of those who will be willing to write for you."[188]

Again he says: "I am most anxious to know how you do but no body is kind

enough to gratify my wishes.... I looked eagerly for a letter to day but

no letter came.... You must not fail when you go to Chiccahominy

[Marshall's farm near Richmond] ... to carry out blankets enough to keep

you comfortable. I am very desirous of hearing what is doing there but

as no body is good enough to let me know how you do & what is passing at

home I could not expect to hear what is passing at the farm."[189]

Indeed, only one letter of Marshall's has been discovered which

indicates that he had received so much as a line from his wife; and this

was when, an old man of seventy-five, he was desperately ill in

Philadelphia.[190] Nothing, perhaps, better reveals the sweetness of his

nature than his cheerful temper and tender devotion under trying

domestic conditions.[191]

His "dearest Polly" was intensely religious, and Marshall profoundly

respected this element of her character.[192] The evidence as to his own

views and feelings on the subject of religion, although scanty, is

definite. He was a Unitarian in belief and therefore never became a

member of the Episcopal church, to which his parents, wife, children,

and all other relatives belonged. But he attended services, Bishop Meade

informs us, not only because "he was a sincere friend of religion," but

also because he wished "to set an example." The Bishop bears this

testimony: "I can never forget how he would prostrate his tall form

before the rude low benches, without backs, at Coolspring

Meeting-House,[193] in the midst of his children and grandchildren and

his old neighbors." When in Richmond, Marshall attended the Monumental

Church where, says Bishop Meade, "he was much incommoded by the

narrowness of the pews.... Not finding room enough for his whole body

within the pew, he used to take his seat nearest the door of the pew,

and, throwing it open, let his legs stretch a little into the

aisle."[194]

It is said, however, that his daughter, during her last illness,

declared that her father late in life was converted, by reading Keith on

Prophecy, to a belief in the divinity of Christ; and that he determined

to "apply for admission to the communion of our Church ... but died

without ever communing."[195] There is, too, a legend about an

astonishing flash of eloquence from Marshall--"a streak of vivid

lightning"--at a tavern, on the subject of religion.[196] The impression

said to have been made by Marshall on this occasion was heightened by

his appearance when he arrived at the inn. The shafts of his ancient gig

were broken and "held together by withes formed from the bark of a

hickory sapling"; he was negligently dressed, his knee buckles

loosened.[197]

In the tavern a discussion arose among some young men concerning "the

merits of the Christian religion." The debate grew warm and lasted "from

six o'clock until eleven." No one knew Marshall, who sat quietly

listening. Finally one of the youthful combatants turned to him and

said: "Well, my old gentleman, what think you of these things?" Marshall

responded with a "most eloquent and unanswerable appeal." He talked for

an hour, answering "every argument urged against" the teachings of

Jesus. "In the whole lecture there was so much simplicity and energy,

pathos and sublimity, that not another word was uttered." The listeners

wondered who the old man could be. Some thought him a preacher; and

great was their surprise when they learned afterwards that he was the

Chief Justice of the United States.[198]

His devotion to his wife illustrates his attitude toward women in

general, which was one of exalted reverence and admiration. "He was an

enthusiast in regard to the domestic virtues," testifies Story. "There

was ... a romantic chivalry in his feelings, which, though rarely

displayed, except in the circle of his most intimate friends, would

there pour out itself with the most touching tenderness." He loved to

dwell on the "excellences," "accomplishments," "talents," and "virtues"

of women, whom he looked upon as "the friends, the companions, and the

equals of man." He tolerated no wit at their expense, no fling, no

sarcasm, no reproach. On no phase of Marshall's character does Story

place so much emphasis as on his esteem for women.[199] Harriet

Martineau, too, bears witness that "he maintained through life and

carried to his grave, a reverence for woman as rare in its kind as in

its degree."[200] "I have always believed that national character as

well as happiness depends more on the female part of society than is

generally imagined," writes Marshall in his ripe age to Thomas

White.[201]

Commenting on Story's account, in his centennial oration on the first

settlement of Salem, of the death of Lady Arbella Johnson, Marshall

expresses his opinion of women thus: "I almost envy the occasion her

sufferings and premature death have furnished for bestowing that

well-merited eulogy on a sex which so far surpasses ours in all the

amiable and attractive virtues of the heart,--in all those qualities

which make up the sum of human happiness and transform the domestic

fireside into an elysium. I read the passage to my wife who expressed

such animated approbation of it as almost to excite fears for that

exclusive admiration which husbands claim as their peculiar privilege.

Present my compliments to M^{rs} Story and say for me that a lady

receives the highest compliment her husband can pay her when he

expresses an exalted opinion of the sex, because the world will believe

that it is formed on the model he sees at home."[202]

Ten children were born to John Marshall and Mary Ambler, of whom six

survived, five boys and one girl.[203] By 1815 only three of these

remained at home; Jacquelin, twenty-eight years old, James Keith,

fifteen, and Edward, ten years of age. John was in Harvard, where

Marshall sent all his sons except Thomas, the eldest, who went to

Princeton.[204] The daughter, Mary, Marshall's favorite child, had

married Jacquelin B. Harvie and lived in Richmond not far from

Marshall's house.[205] Four other children had died early.

"You ask," Marshall writes Story, "if M^{rs} Marshall and myself have

ever lost a child. We have lost four, three of them bidding fairer for

health and life than any that have survived them. One, a daughter about

six or seven ... was one of the most fascinating children I ever saw.

She was followed within a fortnight by a brother whose death was

attended by a circumstance we can never forget.

"When the child was supposed to be dying I tore the distracted mother

from the bedside. We soon afterwards heard a voice in the room which we

considered as indicating the death of the infant. We believed him to be

dead. [I went] into the room and found him still breathing. I returned

[and] as the pang of his death had been felt by his mother and [I] was

confident he must die, I concealed his being alive and prevailed on her

to take refuge with her mother who lived the next door across an open

square from her.

"The child lived two days, during which I was agonized with its

condition and with the occasional hope, though the case was desperate,

that I might enrapture his mother with the intelligence of his

restoration to us. After the event had taken place his mother could not

bear to return to the house she had left and remained with her mother a

fortnight.

"I then addressed to her a letter in verse in which our mutual loss was

deplored, our lost children spoken of with the parental feeling which

belonged to the occasion, her affection for those which survived was

appealed to, and her religious confidence in the wisdom and goodness of

Providence excited. The letter closed with a pressing invitation to

return to me and her children."[206]

All of Marshall's sons married, settled on various parts of the Fairfax

estate, and lived as country gentlemen. Thomas was given the old

homestead at Oak Hill, and there the Chief Justice built for his eldest

son the large house adjacent to the old one where he himself had spent a

year before joining the army under Washington.[207] To this spot

Marshall went every year, visiting Thomas and his other sons who lived

not far apart, seeing old friends, wandering along Goose Creek, over the

mountains, and among the haunts where his first years were spent.

Here, of course, he was, in bearing and appearance, even less the head

of the Nation's Judiciary than he was in Richmond or on the road to

Raleigh. He was emphatically one of the people among whom he sojourned,

familiar, interested, considerate, kindly and sociable to the last

degree. Not one of his sons but showed more consciousness of his own

importance than did John Marshall; not a planter of Fauquier, Warren,

and Shenandoah Counties, no matter how poorly circumstanced, looked and

acted less a Chief Justice of the United States. These characteristics,

together with a peculiar generosity, made Marshall the most beloved man

in Northern Virginia.

Once, when going from Richmond to Fauquier County, he overtook one of

his Revolutionary comrades. As the two rode on together, talking of

their war-time experiences and of their present circumstances, it came

out that this now ageing friend of his youth was deeply in debt and

about to lose all his possessions. There was, it appeared, a mortgage on

his farm which would soon be foreclosed. After the Chief Justice had

left the inn where they both had stopped for refreshments, an envelope

was handed to his friend containing Marshall's check for the amount of

the debt. His old comrade-in-arms quickly mounted his horse, overtook

Marshall, and insisted upon returning the check. Marshall refused to

take it back, and the two friends argued the matter, which was finally

compromised by Marshall's agreeing to take a lien upon the land. But

this he never foreclosed.[208]

This anecdote is highly characteristic of Marshall. He was infinitely

kind, infinitely considerate. Bishop Meade, who knew him well, says that

he "was a most conscientious man in regard to some things which others

might regard as too trivial to be observed." On one of Meade's frequent

journeys with Marshall between Fauquier County and the "lower country,"

they came to an impassable stretch of road. Other travelers had taken

down a fence and gone through the adjoining plantation, and the Bishop

was about to follow the same route. Marshall refused--"He said we had

better go around, although each step was a plunge, adding that it was

his duty, as one in office, to be very particular in regard to such

things."[209]

When in Richmond the one sport in which he delighted was the pitching of

quoits. Not when a lawyer was he a more enthusiastic or regular

attendant of the meetings of the Quoit Club, or Barbecue Club,[210]

under the trees at Buchanan's Spring on the outskirts of Richmond, than

he was when at the height of his fame as Chief Justice of the United

States. More personal descriptions of Marshall at these gatherings have

come down to us than exist for any other phase of his life. Chester

Harding, the artist, when painting Marshall's portrait during the summer

of 1826, spent some time in the Virginia Capital, and attended one of

the meetings of the Quoit Club. It was a warm day, and presently

Marshall, then in his seventy-second year, was seen coming, his coat on

his arm, fanning himself with his hat. Walking straight up to a bowl of

mint julep, he poured a tumbler full of the liquid, drank it off, said,

"How are you, gentlemen?" and fell to pitching quoits with immense

enthusiasm. When he won, says Harding, "the woods would ring with his

triumphant shout."[211]

James K. Paulding went to Richmond for the purpose of talking to the

Chief Justice and observing his daily life. He was more impressed by

Marshall's gayety and unrestraint at the Quoit Club than by anything

else he noted. "The Chief-Justice threw off his coat," relates Paulding,

"and fell to work with as much energy as he would have directed to the

decision of ... the conflicting jurisdiction of the General and State

Governments." During the game a dispute arose between two players "as to

the quoit nearest the meg." Marshall was agreed upon as umpire. "The

Judge bent down on one knee and with a straw essayed the decision of

this important question, ... frequently biting off the end of the straw"

for greater accuracy.[212]

The morning play over, the club dinner followed. A fat pig, roasted over

a pit of coals, cold meats, melons, fruits, and vegetables, were served

in the old Virginia style. The usual drinks were porter, toddy,[213] and

the club punch made of "lemons, brandy, rum, madeira, poured into a

bowl one-third filled with ice (no water), and sweetened."[214] In

addition, champagne and other wines were sometimes provided.[215] At

these meals none of the witty company equaled Marshall in fun-making; no

laugh was so cheery and loud as his. Not more was John Marshall the

chief of the accomplished and able men who sat with him on the Supreme

Bench at Washington than, even in his advancing years, he was the leader

of the convivial spirits who gathered to pitch quoits, drink julep and

punch, tell stories, sing songs, make speeches, and play pranks under

the trees of Richmond.

Marshall dearly loved, when at home, to indulge in the giving of big

dinners to members of the bench and bar. In a wholly personal sense he

was the best-liked man in Richmond. The lawyers and judges living there

were particularly fond of him, and the Chief Justice thoroughly

reciprocated their regard. Spencer Roane, Judge of the Virginia Court of

Appeals, seems to have been the one enemy Marshall had in the whole

city. Indeed, Roane and Jefferson appear to have been the only men

anywhere who ever hated him personally. Even the testy George Hay

reluctantly yielded to his engaging qualities. When at the head of the

Virginia bar, Marshall had been one of those leading attorneys who gave

the attractive dinners that were so notable and delightful a feature of

life in Richmond. After he became Chief Justice, he continued this

custom until his "lawyer dinners" became, among men, the principal

social events of the place.

Many guests sat at Marshall's board upon these occasions. Among them

were his own sons as well as those of some of his guests. These dinners

were repetitions within doors of the Quoit Club entertainments, except

that the food was more abundant and varied, and the cheering drinks were

of better quality--for Marshall prided himself on this feature of

hospitality, especially on his madeira, of which he was said to keep the

best to be had in America. Wit and repartee, joke, story and song,

speech and raillery, brought forth volleys of laughter and roars of

applause until far into the morning hours.[216] Marshall was not only at

the head of the table as host, but was the leader of the merriment.[217]

His labors as Chief Justice did not dull his delight in the reading of

poetry and fiction, which was so keen in his earlier years.[218] At the

summit of his career, when seventy-one years old, he read all of Jane

Austen's works, and playfully reproved Story for failing to name her in

a list of authors given in his Phi Beta Kappa oration at Harvard. "I was

a little mortified," he wrote Story, "to find that you had not admitted

the name of Miss Austen into your list of favorites. I had just finished

reading her novels when I received your discourse, and was so much

pleased with them that I looked in it for her name, and was rather

disappointed at not finding it. Her flights are not lofty, she does not

soar on eagle's wings, but she is pleasing, interesting, equable, and

yet amusing. I count on your making some apology for this

omission."[219]

Story himself wrote poetry, and Marshall often asked for copies of his

verses.[220] "The plan of life I had formed for myself to be adopted

after my retirement from office," he tells Story, "is to read nothing

but novels and poetry."[221] That this statement genuinely expressed his

tastes is supported by the fact that, among the few books which the

Chief Justice treasured, were the novels of Sir Walter Scott and an

extensive edition of the British poets.[222] While his chief

intellectual pleasure was the reading of fiction, Marshall liked poetry

even better; and he committed to memory favorite passages which he

quoted as comment on passing incidents. Once when he was told that

certain men had changed their opinions as a matter of political

expediency, he repeated Homer's lines:

"Ye gods, what havoc does ambition make

'Mong all your works."[223]

During the six or eight weeks that the Supreme Court sat each year,

Marshall was the same in manner and appearance in Washington as he was

among his neighbors in Richmond--the same in dress, in habits, in every

way. Once a practitioner sent his little son to Marshall's quarters for

some legal papers. The boy was in awe of the great man. But the Chief

Justice, detecting the feelings of the lad, remarked: "Billy, I believe

I can beat you playing marbles; come into the yard and we will have a

game." Soon the Chief Justice of the United States and the urchin were

hard at play.[224]

If he reached the court-room before the hour of convening court, he sat

among the lawyers and talked and joked as if he were one of them;[225]

and, judging from his homely, neglected clothing, an uninformed onlooker

would have taken him for the least important of the company. Yet there

was about him an unconscious dignity that prevented any from presuming

upon his good nature, for Marshall inspired respect as well as

affection. After their surprise and disappointment at his ill attire and

want of impressiveness,[226] attorneys coming in contact with him were

unfailingly captivated by his simplicity and charm.

It was thus that Joseph Story, when a very young lawyer, first fell

under Marshall's spell. "I love his laugh," he wrote; "it is too hearty

for an intriguer,--and his good temper and unwearied patience are

equally agreeable on the bench and in the study."[227] And Marshall wore

well. The longer and more intimately men associated with him, the

greater their fondness for him. "I am in love with his character,

positively in love," wrote Story after twenty-four years of close and

familiar contact.[228] He "rises ... with the nearest survey," again

testified Story in a magazine article.[229]

When, however, the time came for him to open court, a transformation

came over him. Clad in the robes of his great office, with the Associate

Justices on either side of him, no king on a throne ever appeared more

majestic than did John Marshall. The kindly look was still in his eye,

the mildness still in his tones, the benignity in his features. But a

gravity of bearing, a firmness of manner, a concentration and intentness

of mind, seemed literally to take possession of the man, although he

was, and appeared to be, as unconscious of the change as he was that

there was anything unusual in his conduct when off the bench.[230]

Marshall said and did things that interested other people and caused

them to talk about him. He was noted for his quick wit, and the bar was

fond of repeating anecdotes about him. "Did you hear what the Chief

Justice said the other day?"--and then the story would be told of a

bright saying, a quick repartee, a picturesque incident. Chief Justice

Gibson of Pennsylvania, when a young man, went to Marshall for advice as

to whether he should accept a position offered him on the State Bench.

The young attorney, thinking to flatter him, remarked that the Chief

Justice had "reached the acme of judicial distinction." "Let me tell

you what that means, young man," broke in Marshall. "The acme of

judicial distinction means the ability to look a lawyer straight in the

eyes for two hours and not hear a damned word he says."[231]

Wherever he happened to be, nothing pleased Marshall so much as to join

a convivial party at dinner or to attend any sort of informal social

gathering. On one occasion he went to the meeting of a club at

Philadelphia, held in a room at a tavern across the hall from the bar.

It was a rule of the club that every one present should make a rhyme

upon a word suddenly given. As he entered, the Chief Justice observed

two or three Kentucky colonels taking their accustomed drink. When

Marshall appeared in the adjoining room, where the company was gathered,

he was asked for an extemporaneous rhyme on the word "paradox." Looking

across the hall, he quickly answered:

"In the Blue Grass region,

A 'Paradox' was born,

The corn was full of kernels

And the 'colonels' full of corn."[232]

But Marshall heartily disliked the formal society of the National

Capital. He was, of course, often invited to dinners and receptions, but

he was usually bored by their formality. Occasionally he would brighten

his letters to his wife by short mention of some entertainment. "Since

being in this place," he writes her, "I have been more in company than I

wish.... I have been invited to dine with the President with our own

secretaries & with the minister of France & tomorrow I dine with the

British minister.... In the midst of these gay circles my mind is

carried to my own fireside & to my beloved wife."[233]

Again: "Soon after dinner yesterday the French Chargé d'affaires called

upon us with a pressing invitation to be present at a party given to the

young couple, a gentleman of the French legation & the daughter of the

secretary of the navy who are lately married. There was a most brilliant

illumination which we saw and admired, & then we returned."[234] Of a

dinner at the French Legation he writes his wife, it was "rather a dull

party. Neither the minister nor his lady could speak English and I could

not speak French. You may conjecture how far we were from being

sociable. Yesterday I dined with M^r Van Buren the secretary of State.

It was a grand dinner and the secretary was very polite, but I was

rather dull through the evening. I make a poor return for these dinners.

I go to them with reluctance and am bad company while there. I hope we

have seen the last, but I fear we must encounter one more.[235] With the

exception of these parties my time was never passed with more

uniformity. I rise early, pour [_sic_] over law cases, go to court and

return at the same hour and pass the evening in consultation with the

Judges."[236]

Chester Harding relates that, when he was in Washington making a

full-length portrait of the Chief Justice,[237] Marshall arrived late

for the sitting, which had been fixed for eight o'clock in the evening.

He came without a hat. Congressman Storrs and one or two other men,

having seen Marshall, bare-headed, hurrying by their inn with long

strides, had "followed, curious to know the cause of such a strange

appearance." But Marshall simply explained to the artist that the

consultation lasted longer than usual, and that he had hurried off

without his hat. When the Chief Justice was about to go home, Harding

offered him a hat, but he said, "Oh, no! it is a warm night, I shall not

need one."[238]

No attorney practicing in the Supreme Court was more unreserved in

social conversation than was the Chief Justice. Sometimes, indeed, on a

subject that appealed to him, Marshall would do all the talking, which,

for some reason, would occasionally be quite beyond the understanding of

his hearer. Of one such exhibition Fisher Ames remarked to Samuel

Dexter: "I have not understood a word of his argument for half an

hour." "And I," replied the leader of the Massachusetts bar, "have been

out of my depth for an hour and a half."[239]

The members of the Supreme Court made life as pleasant for themselves as

they could during the weeks they were compelled to remain in "this

dismal" place, as Daniel Webster described the National Capital.

Marshall and the Associate Justices all lived together at one

boarding-house, and thus became a sort of family. "We live very

harmoniously and familiarly,"[240] writes Story, one year after his

appointment. "My brethren are very interesting men," he tells another

friend. We "live in the most frank and unaffected intimacy. Indeed, we

are all united as one, with a mutual esteem which makes even the labors

of Jurisprudence light."[241]

Sitting about a single table at their meals, or gathered in the room of

one of them, these men talked over the cases before them. Not only did

they "moot every question as" the arguments proceeded in court, but by

"familiar conferences at our lodgings often come to a very quick,

and ... accurate opinion, in a few hours," relates that faithful

chronicler of their daily life, Joseph Story.[242] Story appears to have

been even more impressed by the comradery of the members of the Supreme

Court than by the difficulty of the cases they had to decide.

None of them ever took his wife with him to Washington, and this fact

naturally made the personal relations of the Justices peculiarly close.

"The Judges here live with perfect harmony," Story reiterates, "and as

agreeably as absence from friends and from families could make our

residence. Our intercourse is perfectly familiar and unconstrained, and

our social hours when undisturbed with the labors of law, are passed in

gay and frank conversation, which at once enlivens and instructs."[243]

This "gay and frank conversation" of Marshall and his associates covered

every subject--the methods, manners, and even dress of counsel who

argued before them, the fortunes of public men, the trend of politics,

the incident of the day, the gossip of society. "Two of the Judges are

widowers," records Story, "and of course objects of considerable

attraction among the ladies of the city. We have fine sport at their

expense, and amuse our leisure with some touches at match-making. We

have already ensnared one of the Judges, and he is now (at the age of

forty-seven) violently affected with the tender passion."[244]

Thus Marshall, in his relation with his fellow occupants of the bench,

was at the head of a family as much as he was Chief of a court. Although

the discussion of legal questions occurred continuously at the

boarding-house, each case was much more fully examined in the

consultation room at the Capitol. There the court had a regular

"consultation day" devoted exclusively to the cases in hand. Yet, even

on these occasions, all was informality, and wit and humor brightened

the tediousness. These "consultations" lasted throughout the day and

sometimes into the night; and the Justices took their meals while the

discussions proceeded. Amusing incidents, some true, some false, and

others a mixture, were related of these judicial meetings. One such

story went the rounds of the bar and outlived the period of Marshall's

life.

"We are great ascetics, and even deny ourselves wine except in wet

weather," Story dutifully informed his wife. "What I say about the wine

gives you our rule; but it does sometimes happen that the Chief Justice

will say to me, when the cloth is removed, 'Brother Story, step to the

window and see if it does not look like rain.' And if I tell him that

the sun is shining brightly, Judge Marshall will sometimes reply, 'All

the better, for our jurisdiction extends over so large a territory that

the doctrine of chances makes it certain that it must be raining

somewhere.'"[245]

When, as sometimes happened, one of the Associate Justices displeased a

member of the bar, Marshall would soothe the wounded feelings of the

lawyer. Story once offended Littleton W. Tazewell of Virginia by

something said from the bench. "On my return from court yesterday," the

Chief Justice hastened to write the irritated Virginian, "I informed M^r

Story that you had been much hurt at an expression used in the opinion

he had delivered in the case of the Palmyra. He expressed equal surprize

and regret on the occasion, and declared that the words which had given

offense were not used or understood by him in an offensive sense. He

assented without hesitation to such modification of them as would render

them in your view entirely unexceptionable."[246]

As Chief Justice, Marshall shrank from publicity, while printed

adulation aggravated him. "I hope to God they will let me alone 'till I

am dead," he exclaimed, when he had reached that eminence where writers

sought to portray his life and character.[247]

He did, however, appreciate the recognition given from time to time by

colleges and learned societies. In 1802 Princeton conferred upon him the

honorary degree of LL.D.; in 1806 he received the same degree from

Harvard and from the University of Pennsylvania in 1815. In 1809, as we

have seen, he was elected a corresponding member of the Massachusetts

Historical Society; on January 24, 1804, he was made a member of the

American Academy of Arts and Sciences; and, in 1830, was elected to the

American Philosophical Society. All these honors Marshall valued highly.

This, then, was the man who presided over the Supreme Court of the

United States when the decisions of that tribunal developed the National

powers of the Constitution and gave stability to our National life. His

control of the court was made so easy for the Justices that they never

resented it; often, perhaps, they did not realize it. The influence of

his strong, deep, clear mind was powerfully aided by his engaging

personality. To agree with him was a pleasure.

Marshall's charm was as great as his intellect; he was never irritable;

his placidity was seldom ruffled; not often was his good nature

disturbed. His "great suavity, or rather calmness of manner, cannot

readily be conceived," testifies George Bancroft.[248] The sheer

magnitude of his views was, in itself, captivating, and his supremely

lucid reasoning removed the confusion which more complex and subtle

minds would have created in reaching the same conclusion. The elements

of his mind and character were such, and were so combined, that it was

both hard and unpleasant to differ with him, and both easy and agreeable

to follow his lead.

Above all other influences upon his associates on the bench, and,

indeed, upon everybody who knew him, was the sense of trustworthiness,

honor, and uprightness he inspired.[249] Perhaps no public man ever

stood higher in the esteem of his contemporaries for noble personal

qualities than did John Marshall.

When reviewing his constructive work and marveling at his influence over

his judicial associates, we must recall, even at the risk of iteration,

the figure revealed by his daily life and habits--"a man who is tall to

awkwardness, with a large head of hair, which looked as if it had not

been lately tied or combed, and with dirty boots,"[250] a body that

seemed "without proportion," and arms and legs that "dangled from each

other and looked half dislocated," dressed in clothes apparently "gotten

from some antiquated slop-shop of second-hand raiment ... the coat and

breeches cut for nobody in particular."[251] But we must also think of

such a man as possessed of "style and tones in conversation uncommonly

mild, gentle, and conciliating."[252] We must think of his hearty

laughter, his "imperturbable temper,"[253] his shyness with strangers,

his quaint humor, his hilarious unreserve with friends and convivial

jocularity when with intimates, his cordial warm-heartedness, unassuming

simplicity and sincere gentleness to all who came in contact with him--a

man without "an atom of gall in his whole composition."[254] We must

picture this distinctive American character among his associates of the

bench in the Washington boarding-house no less than in court, his

luminous mind guiding them, his irresistible personality drawing from

them a real and lasting affection. We must bear in mind the trust and

confidence which so powerfully impressed those who knew the man. We must

imagine a person very much like Abraham Lincoln.

Indeed, the resemblance of Marshall to Lincoln is striking. Between no

two men in American history is there such a likeness. Physically,

intellectually, and in characteristics, Marshall and Lincoln were of the

same type. Both were very tall men, slender, loose-jointed, and awkward,

but powerful and athletic; and both fond of sport. So alike were they,

and so identical in their negligence of dress and their total

unconsciousness of, or indifference to, convention, that the two men,

walking side by side, might well have been taken for brothers.

Both Marshall and Lincoln loved companionship with the same heartiness,

and both had the same social qualities. They enjoyed fun, jokes,

laughter, in equal measure, and had the same keen appreciation of wit

and humor. Their mental qualities were the same. Each man had the gift

of going directly to the heart of any subject; while the same lucidity

of statement marked each of them. Their style, the simplicity of their

language, the peculiar clearness of their logic, were almost identical.

Notwithstanding their straightforwardness and amplitude of mind, both

had a curious subtlety. Some of Marshall's opinions and Lincoln's state

papers might have been written by the same man. The "Freeholder"

questions and answers in Marshall's congressional campaign, and those of

Lincoln's debate with Douglas, are strikingly similar in method and

expression.

Each had a genius for managing men; and Marshall showed the precise

traits in dealing with the members of the Supreme Court that Lincoln

displayed in the Cabinet.

Both were born in the South, each on the eve of a great epoch in

American history when a new spirit was awakening in the hearts of the

people. Although Southern-born, both Marshall and Lincoln sympathized

with and believed in the North; and yet their manners and instinct were

always those of the South. Marshall was given advantages that Lincoln

never had; but both were men of the people, were brought up among them,

and knew them thoroughly. Lincoln's outlook upon life, however, was that

of the humblest citizen; Marshall's that of the well-placed and

prosperous. Neither was well educated, but each acquired, in different

ways, a command of excellent English and broad, plain conceptions of

government and of life. Neither was a learned man, but both created the

materials for learning.

Marshall and Lincoln were equally good politicians; but, although both

were conservative in their mental processes, Marshall lost faith in the

people's steadiness, moderation, and self-restraint; and came to think

that impulse rather than wisdom was too often the temporary moving power

in the popular mind, while the confidence of Lincoln in the good sense,

righteousness, and self-control of the people became greater as his life

advanced. If, with these distinctions, Abraham Lincoln were, in

imagination, placed upon the Supreme Bench during the period we are now

considering, we should have a good idea of John Marshall, the Chief

Justice of the United States.

It is, then, largely the personality of John Marshall that explains the

hold, as firm and persistent as it was gentle and soothing, maintained

by him upon the Associate Justices of the Supreme Court; and it is this,

too, that enables us to understand his immense popularity with the

bar--a fact only second in importance to the work he had to do, and to

his influence upon the men who sat with him on the bench.

For the lawyers who practiced before the Supreme Court at this period

were most helpful to Marshall.[255] Many of them were men of wide and

accurate learning, and nearly all of them were of the first order of

ability. No stronger or more brilliant bar ever was arrayed before any

bench than that which displayed its wealth of intellect and resources to

Marshall and his associates.[256] This assertion is strong, but wholly

justified. Oratory of the finest quality, though of the old rhetorical

kind, filled the court-room with admiring spectators, and entertained

Marshall and the other Justices, as much as the solid reasoning

illuminated their minds, and the exhaustive learning informed them.

Marshall encouraged extended arguments; often demanded them. Frequently

a single lawyer would speak for two or three days. No limit of time was

put upon counsel.[257] Their reputation as speakers as well as their

fame as lawyers, together with the throngs of auditors always present,

put them on their mettle. Rhetoric adorned logic; often encumbered it. A

conflict between such men as William Pinkney, Luther Martin of Maryland,

Samuel Dexter of Massachusetts, Thomas Addis Emmet of New York, William

Wirt of Virginia, Joseph Hopkinson of Pennsylvania, Jeremiah Mason of

New Hampshire, Daniel Webster, Henry Clay, and others of scarcely less

distinction, was, in itself, an event. These men, and indeed all the

members of the bar, were Marshall's friends as well as admirers.

The appointment of Story to the Supreme Bench was, like the other

determining circumstances in Marshall's career, providential.

Few characters in American history are more attractive than the New

England lawyer and publicist who, at the age of thirty-two, took his

place at Marshall's side on the Supreme Bench. Handsome, vivacious,

impressionable, his mind was a storehouse of knowledge, accurately

measured and systematically arranged. He read everything, forgot

nothing. His mental appetite was voracious, and he had a very passion

for research. His industry was untiring, his memory unfailing. He

supplied exactly the accomplishment and toilsomeness that Marshall

lacked. So perfectly did the qualities and attainments of these two men

supplement one another that, in the work of building the American

Nation, Marshall and Story may be considered one and the same person.

Where Marshall was leisurely, Story was eager. If the attainments of the

Chief Justice were not profuse, those of his young associate were

opulent. Marshall detested the labor of investigating legal authorities;

Story delighted in it. The intellect of the older man was more massive

and sure; but that of the youthful Justice was not far inferior in

strength, or much less clear and direct in its operation. Marshall

steadied Story while Story enriched Marshall. Each admired the other,

and between them grew an affection like that of father and son.

Story's father, Elisha Story, was a member of the Republican Party, a

rare person among wealthy and educated men in Massachusetts at the time

Jefferson founded that political organization. The son tells us that he

"naturally imbibed the same opinions," which were so reprobated that not

"more than four or five lawyers in the whole state ... _dared_ avow

themselves republicans. The very name was odious."[258]

[Illustration]

Joseph Story was born in Marblehead, Massachusetts, September 18, 1779,

one of a family of eighteen children, seven by a first wife and eleven

by a second. He was the eldest son of the second wife, who had been a

Miss Pedrick, the daughter of a rich merchant and shipowner.[259]

No young member of the Massachusetts bar equaled Joseph Story in

intellectual gifts and acquirements. He was a graduate of Harvard, and

few men anywhere had a broader or more accurate education. His

personality was winning and full of charm. Yet, when he began practice

at Salem, he was "persecuted" with "extreme ... virulence" because of

his political opinions.[260] He became so depressed by what he calls

"the petty prejudices and sullen coolness of New England, ... bigoted in

opinion and satisfied in forms," where Federalism had "persecuted ...

[him] unrelentingly for ... [his] political principles," that he thought

seriously of going to Baltimore to live and practice his profession. He

made headway, however, in spite of opposition; and, when the growing

Republican Party, "the whole" of which he says were his "warm

advocates,"[261] secured the majority of his district, Story was sent to

Congress. "I was ... of course a supporter of the administration of Mr.

Jefferson and Mr. Madison," although not "a mere slave to the opinions

of either." In exercising what he terms his "independent judgment,"[262]

Story favored the repeal of the Embargo, and so earned, henceforth, the

lasting enmity of Jefferson.[263]

Because of his recognized talents, and perhaps also because of the

political party to which he belonged, he was employed to go to

Washington as attorney for the New England and Mississippi Company in

the Yazoo controversy.[264] It was at this period that the New England

Federalist leaders began to cultivate him. They appreciated his ability,

and the assertion of his "independent principles" was to their liking.

Harrison Gray Otis was quick to advise that seasoned politician, Robert

Goodloe Harper, of the change he thought observable in Story, and the

benefit of winning his regard. "He is a young man of talents, who

commenced Democrat a few years since and was much fondled by his party,"

writes Otis. "He discovered however too much sentiment and honor to go

_all lengths_ ... and a little attention from the right sort of people

will be very useful to him & to us."[265]

The wise George Cabot gave Pickering the same hint when Story made one

of his trips to Washington on the Yazoo business. "Though he is a man

whom the Democrats support," says Cabot, "I have seldom if ever met with

one of sounder mind on the principal points of national policy. He is

well worthy the civil attention of the most respectable

Federalists."[266]

It was while in the Capital, as attorney before Congress and the Supreme

Court in the Georgia land controversy, that Story, then twenty-nine

years old, met Marshall; and impulsively wrote of his delight in the

"hearty laugh," "patience," consideration, and ability of the Chief

Justice. On this visit to Washington the young Massachusetts lawyer took

most of his meals with the members of the Supreme Court.[267] At that

time began the devotion of Joseph Story to John Marshall which was to

prove so helpful to both for more than a generation, and so influential

upon the Republic for all time.

That Story, while in Washington, had copiously expressed his changing

opinions, as well as his disapproval of Jefferson's Embargo, is certain;

for he was "a very great talker,"[268] and stated his ideas with the

volubility of his extremely exuberant nature. "At this time, as in after

life," declares Story's son, "he was remarkable for fulness and fluency

of conversation. It poured out from his mind ... sparkling, and

exhaustless. Language was as a wide open sluice, through which every

feeling and thought rushed forth.... It would be impossible to give an

idea of his conversational powers."[269]

It was not strange, then, that Jefferson, who was eager for all gossip

and managed to learn everything that happened, or was said to have

happened, in Washington, heard of Story's association with the

Federalists, his unguarded talk, and especially his admiration for the

Chief Justice. It was plain to Jefferson that such a person would never

resist Marshall's influence.

In Jefferson's mind existed another objection to Story which may justly

be inferred from the situation in which he found himself when the

problem arose of filling the place on the Supreme Bench vacated by the

death of Justice Cushing. Story had made a profound study of the law of

real estate; and, young though he was, no lawyer in America equaled him,

and few in England surpassed him, in the intricate learning of that

branch of legal science. This fact was well known to the bar at

Washington as well as to that of Massachusetts. Therefore, the thought

of Story on the Supreme Bench, and under Marshall's influence, made

Jefferson acutely uncomfortable; for the former President was then

engaged in a lawsuit involving questions of real estate which, if

decided against him, would, as he avowed, ruin him. This lawsuit was the

famous Batture litigation. It was this predicament that led Jefferson to

try to control the appointment of the successor to Cushing, whose death

he declared to be "a Godsend"[270] to him personally; and also to

dictate the naming of the district judge at Richmond to the vacancy

caused by the demise of Judge Cyrus Griffin.

In the spring of 1810, Edward Livingston, formerly of New York and then

of New Orleans, brought suit in the United States Court for the District

of Virginia against Thomas Jefferson for damages to the amount of one

hundred thousand dollars. This was the same Livingston who in Congress

had been the Republican leader in the House when Marshall was a member

of that body.[271] Afterwards he was appointed United States Attorney

for the District of New York and then became Mayor of that city. During

the yellow fever epidemic that scourged New York in 1803, Livingston

devoted himself to the care of the victims of the plague, leaving the

administration of the Mayor's office to a trusted clerk. In time

Livingston, too, was stricken. During his illness his clerk embezzled

large sums of the public money. The Mayor was liable and, upon his

recovery, did not attempt to evade responsibility, but resigned his

office and gave all his property to make good the defalcation. A heavy

amount, however, still remained unpaid; and the discharge of this

obligation became the ruling purpose of Livingston's life until, twenty

years afterward, he accomplished his object.

His health regained, Livingston went to New Orleans to seek fortune

anew. There he soon became the leader of the bar. When Wilkinson set up

his reign of terror in that city, it was Edward Livingston who swore out

writs of habeas corpus for those illegally imprisoned and, in general,

was the most vigorous as well as the ablest of those who opposed

Wilkinson's lawless and violent measures.[272] Jefferson had been

displeased that Livingston had not shown more enthusiasm for him, when,

in 1801, the Federalists had tried to elect Burr to the Presidency, and

bitterly resented Livingston's interference with Wilkinson's plans to

"suppress treason" in New Orleans.

One John Gravier, a lifelong resident of that city, had inherited from

his brother Bertrand certain real estate abutting the river. Between

this and the water the current had deposited an immense quantity of

alluvium. The question of the title to this river-made land had never

been raised, and everybody used it as a sort of common wharf front.

Alert for opportunities to make money with which fully to discharge the

defalcation in the New York Mayor's office, Livingston investigated the

rightful ownership of the batture, as the alluvial deposit was termed;

satisfied himself that the title was in Gravier; gave an opinion to that

effect, and brought suit for the property as Gravier's attorney.[273]

While the trial of Aaron Burr was in progress in Richmond, the Circuit

Court in New Orleans rendered judgment in favor of Gravier,[274] who

then conveyed half of his rights to his attorney, apparently as a fee

for the recovery of the batture.

Livingston immediately began to improve his property, whereupon the

people became excited and drove away his workmen. Governor Claiborne

refused to protect him and referred the whole matter to Jefferson. The

President did not direct the Attorney-General to bring suit for the

possession of the batture--the obvious and the legal form of procedure.

Indeed, the title to the property was not so much as examined.

Jefferson did not even take into consideration the fact that, if

Livingston was not the rightful owner of the batture, it might belong to

the City of New Orleans. He merely assumed that it was National

property; and, hastily acting under a law against squatters on lands

belonging to the United States, he directed Secretary of State Madison

to have all persons removed from the disputed premises. Accordingly, the

United States Marshal was ordered to eject the "intruder" and his

laborers. This was done; but Livingston told his men to return to their

work and secured an injunction against the Marshal from further

molesting them. That official ignored the order of the court and again

drove the laborers off the batture.

Livingston begged the President to submit the controversy to arbitration

or to judicial decision, but Jefferson was deaf to his pleas. The

distracted lawyer appealed to Congress for relief.[275] That body

ignored his petition.[276] He then brought suit against the Marshal in

New Orleans for the recovery of his property. Soon afterward he brought

another in Virginia against Jefferson for one hundred thousand dollars

damages. Such, in brief outline, was the beginning of the famous

"Batture Controversy," in which Jefferson and Livingston waged a war of

pamphlets for years.

When he learned that Livingston had begun action against him in the

Federal court at Richmond, Jefferson was much alarmed. In anticipation

of the death of Judge Cyrus Griffin, Governor John Tyler had written

Jefferson that, while he "never did apply for an office," yet "Judge

Griffin is in a low state of health, and holds my old office." Tyler

continues: "I really hope the President will chance to think of me ...

in case of accidents, and if an opportunity offers, lay me down softly

on a bed of _roses in my latter days_." He condemns Marshall for his

opposition to the War of 1812, and especially for his reputed statement

that Great Britain had done nothing to justify armed retaliation on our

part.[277] "Is it possible," asks Tyler, "that a man who can assert

this, can have any true sense of sound veracity? And yet these sort of

folks retain their stations and consequence in life."[278]

Immediately Jefferson wrote to President Madison: "From what I can learn

Griffin cannot stand it long, and really the state has suffered long

enough by having such a cypher in so important an office, and infinitely

the more from the want of any counter-point to the rancorous hatred

which Marshall bears to the government of his country, & from the

cunning & sophistry within which he is able to enshroud himself. It will

be difficult to find a character of firmness enough to preserve his

independence on the same bench with Marshall. Tyler, I am certain, would

do it.... A milk & water character ... would be seen as a calamity.

Tyler having been the former state judge of that court too, and removed

to make way for so wretched a fool as Griffin,[279] has a kind of right

of reclamation."

Jefferson gives other reasons for the appointment of Tyler, and then

addresses Madison thus: "You have seen in the papers that Livingston has

served a writ on me, stating damages at 100,000. D... I shall soon look

into my papers to make a state of the case to enable them to plead."

Jefferson hints broadly that he may have to summon as witnesses his

"associates in the proceedings," one of whom was Madison himself.

He concludes this astounding letter in these words: "It is a little

doubted that his [Livingston's] knolege [_sic_] of Marshall's character

has induced him to bring this action. His twistifications of the law in

the case of Marbury, in that of Burr, & the late Yazoo case shew how

dexterously he can reconcile law to his personal biasses: and nobody

seems to doubt that he is ready prepared to decide that Livingston's

right to the batture is unquestionable, and that I am bound to pay for

it with my private fortune."[280]

The next day Jefferson wrote Tyler that he had "laid it down as a law"

to himself "never to embarrass the President with any solicitations."

Yet, in Tyler's case, says Jefferson, "I ... have done it with all my

heart, and in the full belief that I serve him and the public in urging

the appointment." For, Jefferson confides to the man who, in case

Madison named him, would, with Marshall, hear the suit, "we have long

enough suffered under the base prostitution of the law to party passions

in one judge, and the imbecility of another.

"In the hands of one [Marshall] the law is nothing more than an

ambiguous text, to be explained by his sophistry into any meaning which

may subserve his personal malice. Nor can any milk-and-water associate

maintain his own independence, and by a firm pursuance of what the law

really is, extend its protection to the citizens or the public.... And

where you cannot induce your colleague to do what is right, you will be

firm enough to hinder him from doing what is wrong, and by opposing

sense to sophistry, leave the juries free to follow their own

judgment."[281]

Upon the death of Judge Griffin in the following December, John Tyler

was appointed to succeed him.

On September 13, 1810, William Cushing, Associate Justice of the Supreme

Court, died. Only three Federalists now remained on the Supreme Bench,

Samuel Chase, Bushrod Washington, and John Marshall. The other Justices,

William Johnson of South Carolina, Brockholst Livingston of New York,

and Thomas Todd of Kentucky, were Republicans, appointed by Jefferson.

The selection of Cushing's successor would give the majority of the

court to the Republican Party for the first time since its

organization. That Madison would fill the vacancy by one of his own

following was certain; but this was not enough to satisfy Jefferson, who

wanted to make sure that the man selected was one who would not fall

under Marshall's baleful influence. If Griffin did not die in time,

Jefferson's fate in the batture litigation would be in Marshall's hands.

Should Griffin be polite enough to breathe his last promptly and Tyler

be appointed in season, still Jefferson would not feel safe--the case

might go to the jury, and who could tell what their verdict would be

under Marshall's instructions? Even Tyler might not be able to "hinder"

Marshall "from wrong doing"; for nothing was more probable than that, no

matter what the issue of the case might be, it would be carried to the

Supreme Court if any ground for appeal could be found. Certainly

Jefferson would take it there if the case should go against him. It was

vital, therefore, that the latest vacancy on the Supreme Bench should

also be filled by a man on whom Jefferson could depend.

The new Justice must come from New England, Cushing having presided over

that circuit. Republican lawyers there, fit for the place, were at that

time extremely hard to find. Jefferson had been corresponding about the

batture case with Gallatin, who had been his Secretary of the Treasury

and continued in that office under Madison. The moment he learned of

Cushing's death, Jefferson wrote to Gallatin in answer to a letter from

that able man, admitting that "the Batture ... could not be within the

scope of the law ... against squatters," under color of which Livingston

had been forcibly ousted from that property. Jefferson adds: "I should

so adjudge myself; yet I observe many opinions otherwise, and in defence

against a spadassin it is lawful to use all weapons." The case is

complex; still no unbiased man "can doubt what the issue of the case

ought to be. What it will be, no one can tell.

"The judge's [Marshall's] inveteracy is profound, and his mind of that

gloomy malignity which will never let him forego the opportunity of

satiating it on a victim. His decisions, his instructions to a jury, his

allowances and disallowances and garblings of evidence, must all be

subjects of appeal.... And to whom is my appeal? From the judge in

Burr's case to himself and his associate judges in the case of Marbury

V. Madison.

"Not exactly, however. I observe old Cushing is dead.... The event is a

fortunate one, and so timed as to be a Godsend to me. I am sure its

importance to the nation will be felt, and the occasion employed to

complete the great operation they have so long been executing, by the

appointment of a decided Republican, with nothing equivocal about him.

But who will it be?"

Jefferson warmly recommends Levi Lincoln, his former Attorney-General.

Since the new Justice must come from New England, "can any other bring

equal qualifications?... I know he was not deemed a profound common

lawyer; but was there ever a profound common lawyer known in one of the

Eastern States? There never was, nor never can be, one from those

States.... Mr. Lincoln is ... as learned in their laws as any one they

have."[282]

After allowing time for Gallatin to carry this message to the President,

Jefferson wrote directly to Madison. He congratulates him on "the

revocation of the French decrees"; abuses Great Britain for her

"principle" of "the exclusive right to the sea by conquest"; and then

comes to the matter of the vacancy on the Supreme Bench.

"Another circumstance of congratulation is the death of Cushing," which

"gives an opportunity of closing the reformation [the Republican triumph

of 1800] by a successor of unquestionable republican principles."

Jefferson suggests Lincoln. "Were he out of the way," then Gideon

Granger ought to be chosen, "tho' I am sensible that J.[ohn] R.[andolph]

has been able to lessen the confidence of many in him.[283]... As the

choice must be of a New Englander, ... I confess I know of none but

these two characters." Of course there was Joseph Story, but he is

"unquestionably a tory," and "too young."[284]

Madison strove to follow Jefferson's desires. Cushing's place was

promptly offered to Lincoln, who declined it because of approaching

blindness. Granger, of course, was impossible--the Senate would not have

confirmed him. So Alexander Wolcott, "an active Democratic politician of

Connecticut," of mediocre ability and "rather dubious ...

character,"[285] was nominated; but the Senate rejected him. It seemed

impossible to find a competent lawyer in New England who would satisfy

Jefferson's requirements. John Quincy Adams, who had deserted the

Federalist Party and acted with the Republicans, and who was then

Minister to Russia, was appointed and promptly confirmed. Jefferson

himself had not denounced Marshall so scathingly as had Adams in his

report to the Senate on the proposed expulsion of Senator John Smith of

Ohio.[286] It was certain that he would not, as Associate Justice, be

controlled by the Chief Justice. But Adams preferred to continue in his

diplomatic post, and refused the appointment.

Thus Story became the only possible choice. After all, he was still

believed to be a Republican by everybody except Jefferson and the few

Federalist leaders who had been discreetly cultivating him. At least his

appointment would not be so bad as the selection of an out-and-out

Federalist. On November 18, 1811, therefore, Joseph Story was made an

Associate Justice of the Supreme Court of the United States. In

Massachusetts his appointment "was ridiculed and condemned."[287]

Although Jefferson afterward declared that he "had a strong desire that

the public should have been satisfied by a trial on the merits,"[288] he

was willing that his counsel should prevent the case from coming to

trial if they could. Fearing, however, that they would not succeed,

Jefferson had prepared, for the use of his attorneys, an exhaustive

brief covering his version of the facts and his views of the law.

Spencer Roane, Judge of the Virginia Court of Appeals, and as hot a

partisan of Jefferson as he was an implacable enemy of Marshall, read

this manuscript and gave Tyler "some of the outlines of it." Tyler

explains this to Jefferson after the decision in his favor, and adds

that, much as Tyler wanted to get hold of Jefferson's brief, still, "as

soon as I had received the appointment ... (which I owe to your favor in

great measure), it became my duty to shut the door against every

observation which might in any way be derived from either side, lest the

impudent British faction, who had enlisted on Livingston's side, might

suppose an undue influence had seized upon me."[289]

The case aroused keen interest in Virginia and, indeed, throughout the

country. Jefferson was still the leader of the Republican Party and was

as much beloved and revered as ever by the great majority of the people.

When, therefore, he was sued for so large a sum of money, the fact

excited wide and lively attention. That the plaintiff was such a man as

Edward Livingston gave sharper edge to the general interest. Especially

among lawyers, curiosity as to the outcome was keen. In Richmond, of

course, "great expectation was excited."

When the case came on for hearing, Tyler was so ill from a very painful

affliction that he could scarcely sit through the hearing; but he

persisted because he had "determined to give an opinion." The question

of jurisdiction alone was argued and only this was decided. Both judges

agreed that the court had no jurisdiction, though Marshall did so with

great reluctance. He wished "to carry the cause to the Supreme Court, by

adjournment or somehow or other; but," says Tyler in his report to

Jefferson, "I pressed the propriety of [its] being decided."[290]

Marshall, however, delivered a written opinion in which he gravely

reflected on Jefferson's good faith in avoiding a trial on the merits.

If the court, upon mere technicality, were prevented from trying and

deciding the case, "the injured party may have a clear right without a

remedy"; and that, too, "in a case where a person who has done the

wrong, and who ought to make the compensation, is within the power of

the court." The situation created by Jefferson's objection to the

court's jurisdiction was unfortunate: "Where the remedy is against the

person, and is within the power of the court, I have not yet discerned a

reason, other than a technical one, which can satisfy my judgment" why

the case should not be tried and justice done.

"If, however," continues Marshall, "this technical reason is firmly

established, if all other judges respect it, I cannot venture to

disregard it," no matter how wrong in principle and injurious to

Livingston the Chief Justice might think it. If Lord Mansfield, "one of

the greatest judges who ever sat upon any bench, and who has done more

than any other, to remove those technical impediments which ... too long

continued to obstruct the course of substantial justice," had vainly

attempted to remove the very "technical impediments" which Jefferson had

thrown in Livingston's way, Marshall would not make the same fruitless

effort.

To be sure, the technical point raised by Jefferson's counsel was a

legal fiction derived from "the common law of England"; but "this common

law has been adopted by the legislature of Virginia"; and "had it not

been adopted, I should have thought it in force." Thus Marshall, by

innuendo, blames Jefferson for invoking, for his own protection, a

technicality of that very common law which the latter had so often and

so violently denounced. For the third time Marshall deplores the use of

a technicality "which produces the inconvenience of a clear right

without a remedy." "Other judges have felt the weight of this argument,

and have struggled ineffectually against" it; so, he concluded, "I must

submit to it."[291]

Thus it was that Jefferson at last escaped; for it was nothing less than

an escape. What a decision on the merits of the case would have been is

shown by the opinion of Chancellor Kent, stated with his characteristic

emphasis. Jefferson was anxious that the public should think that he was

in the right. "Mr. Livingston's suit having gone off on the plea to the

jurisdiction, it's foundation remains of course unexplained to the

public. I have therefore concluded to make it public thro' the ...

press.... I am well satisfied to be relieved from it, altho' I had a

strong desire that the public should have been satisfied by a trial on

the merits."[292] Accordingly, Jefferson prepared his statement of the

controversy and, curiously enough, published it just before Livingston's

suit against the United States Marshal in New Orleans was approaching

decision. To no other of his documents did he give more patient and

laborious care. Livingston replied in an article[293] which justified

the great reputation for ability and learning he was soon to acquire in

both Europe and America.[294] Kent followed this written debate

carefully. When Livingston's answer appeared, Kent wrote him: "I read it

eagerly and studied it thoroughly, with a re-examination of Jefferson as

I went along; and I should now be as willing to subscribe my name to the

validity of your title and to the atrocious injustice you have received

as to any opinion contained in Johnson's Reports."[295]

Marshall's attitude in the Batture litigation intensified Jefferson's

hatred for the Chief Justice, while Jefferson's conduct in the whole

matter still further deepened Marshall's already profound belief that

the great exponent of popular government was dishonest and cowardly.

Story shared Marshall's views; indeed, the Batture controversy may be

said to have furnished that personal element which completed Story's

forming antagonism to Jefferson. "Who ... can remember, without regret,

his conduct in relation to the batture of New Orleans?" wrote Story many

years afterward.[296]

The Chief Justice attributed the attacks which Jefferson made upon him

in later years to his opinion in Livingston _vs._ Jefferson, and to the

views he was known to have held as to the merits of that case and

Jefferson's course in relation to it. "The Batture will never be

forgotten," wrote the Chief Justice some years later when commenting on

the attacks upon the National Judiciary which he attributed to

Jefferson.[297] Again: "The case of the mandamus[298] may be the cloak,

but the batture is recollected with still more resentment."[299]

Events thus sharpened the hostility of Jefferson and his following to

Marshall, but drew closer the bonds between the Chief Justice and Joseph

Story. Once under Marshall's pleasing, steady, powerful influence, Story

sped along the path of Nationalism until sometimes he was ahead of the

great constructor who, as he advanced, was building an enduring and

practicable highway.

FOOTNOTES:

[156] Jefferson to Madison, May 25,1810, _Works_: Ford, XI, 140.

"There is no man in the court that strikes me like Marshall.... I have

never seen a man of whose intellect I had a higher opinion." (Webster to

his brother, March 28, 1814, _Private Correspondence of Daniel Webster_:

Webster, I, 244.)

[157] "In the possession of an ordinary man ... it [the office of Chief

Justice] would be very apt to disgrace him." (Story to McLean, Oct. 12,

1835, Story, II, 208.)

[158] Justice Duval's name is often, incorrectly, spelled with two

"l's."

[159] "No man had ever a stronger influence upon the minds of others."

(_American Jurist_, XIV, 242.)

[160] Ingersoll: _Historical Sketch of the Second War between the United

States and Great Britain_, 2d Series, I, 74.

[161] "He was not, in any sense of the word, a learned man." (George S.

Hillard in _North American Review_, XLII, 224.)

[162] See vol. I, 163, of this work; also _Southern Literary Messenger_,

XVII, 154; and Terhune: _Colonial Homesteads_, 92.

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

[164] Mordecai: _Richmond in By-Gone Days_, 64.

[165] Terhune, 91.

[166] _Ib._ 92; and see Howe: _Historical Collections of Virginia_, 266.

[167] _Green Bag_, VIII, 486.

[168] Personal experience related by Dr. William P. Palmer to Dr. J.

Franklin Jameson, and by him to the author.

[169] Meade: _Old Churches, Ministers and Families of Virginia_, II,

222.

[170] _Magazine of American History_, XII, 70; also _Green Bag_, VIII,

486.

[171] Anderson, 214.

[172] The stage schedule was much shorter, but the hours of travel very

long. The stage left Petersburg at 3 A.M., arrived at Warrenton at 8

P.M., left Warrenton at 3 A.M., and arrived at Raleigh the same night.

(Data furnished by Professor Archibald Henderson.) The stage was seldom

on time, however, and the hardships of traveling in it very great.

Marshall used it only when in extreme haste, a state of mind into which

he seldom would be driven by any emergency.

[173] Mordecai, 64-65. Bishop Meade says of Marshall on his trips to

Fauquier County, "Servant he had none." (Meade, II, 222.)

[174] As related by M. D. Haywood, Librarian of the Supreme Court of

North Carolina, to Professor Archibald Henderson and by him to the

author; and see _Harper's Magazine_, LXX, 610; _World's Work_, I, 395.

[175] Judge James C. MacRae in _John Marshall--Life, Character and

Judicial Services_: Dillon, II, 68.

[176] As late as April, 1811, the population of Raleigh was between six

hundred and seven hundred. Nearly all the houses were of wood. By 1810

there were only four brick houses in the town.

[177] _Magazine of American History_, XII, 69.

[178] Account of eye-witness as related by Dr. Kemp P. Battle of Raleigh

to Professor Henderson and by him to the author.

Another tavern was opened about 1806 by one John Marshall. He had been

one of the first commissioners of Raleigh, serving until 1797. He was no

relation whatever to the Chief Justice. As already stated (vol. I,

footnote to 15, of this work) the name was a common one.

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

[180] See _infra_, 154-56.

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

Henderson.)

[182] _World's Work_, I, 395. This statement is supported by the

testimony of Mr. Edward V. Valentine of Richmond, who has spent many

years gathering and verifying data concerning Richmond and its early

citizens. It is also confirmed by the Honorable James Keith, until

recently President of the Court of Appeals of Virginia, and by others of

the older residents of Richmond. For some opinions thus written, see

chaps, IV, V, and VI of this volume.

[183] _Green Bag_, VIII, 484. Sympathetic Richmond even ordered the town

clock and town bell muffled. (Meade, II, 222.)

[184] Statements of two eye-witnesses, Dr. Richard Crouch and William F.

Gray, to Mr. Edward V. Valentine and by him related to the author.

[185] Accounts given Professor J. Franklin Jameson by old residents of

Richmond, and by Professor Jameson to the author.

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

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

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

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

[190] See _infra_, chap. X.

[191] Mrs. Marshall did not write to her children, it would seem. When

he was in Richmond, the Chief Justice himself sent messages from her

which were ordinary expressions of affection.

"Your mother is very much gratified with the account you give from

yourself and Claudia of all your affairs & especially of your children

and hopes for its continuance. She looks with some impatience for

similar information from John. She desires me to send her love to all

the family including Miss Maria and to tell you that this hot weather

distresses her very much & she wishes you also to give her love to John

& Elizabeth & their children." (Marshall to his son James K. Marshall,

Richmond, July 3, 1827, MS.)

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

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

[194] Meade, II, 221-22.

[195] _Green Bag_, VIII, 487.

[196] Howe, 275-76.

[197] _Ib._

[198] This story was originally published in the _Winchester

Republican_. The incident is said to have occurred at McGuire's hotel in

Winchester. The newspaper account is reproduced in the Charleston (S.C.)

edition (1845) of Howe's book, 275-76.

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

[200] Martineau: _Retrospect of Western Travels_, I, 150.

[201] _North American Review_, XX, 444-45.

[202] Marshall to Story, Oct. 29, 1828, _Proceedings, Massachusetts

Historical Society_, 2d Series, XIV, 337-38.

[203] Thomas, born July 21, 1784; Jacquelin Ambler, born December 3,

1787; Mary, born September 17, 1795; John, born January 15, 1798; James

Keith, born February 13, 1800; Edward Carrington, born January 13, 1805.

(Paxton: _Marshall Family_, Genealogical Chart.)

[204] Edward Carrington was the only son to receive the degree of A.B.

from Harvard (1826).

[205] Paxton, 100.

[206] Marshall to Story, June 26, 1831, _Proceedings, Mass. Hist. Soc._

2d Series, XIV, 344-46.

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

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

[209] Meade, II, 222.

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

[211] White: _A Sketch of Chester Harding, Artist_, 195-96.

[212] _Lippincott's Magazine_, II, 624. Paulding makes this comment on

Marshall: "In his hours of relaxation he was as full of fun and as

natural as a child. He entered into the spirit of athletic exercises

with the ardor of youth; and at sixty-odd years of age was one of the

best quoit-players in Virginia." (_Ib._ 626.)

[213] _American Turf Register and Sporting Magazine_ (1829), I, 41-42;

and see Mordecai, 188-89.

[214] Recipe for the Quoit Club punch, _Green Bag_, VIII, 482. This

recipe was used for many years by the Richmond Light Infantry Blues.

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

[216] On these occasions Mrs. Marshall spent the nights at the house of

her daughter or sister.

[217] For an extended description of Marshall's "lawyer dinners" see

Terhune, 85-87.

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

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

[220] Story to his wife, Feb. 26, 1832, _ib._ II, 84.

[221] Marshall to Story, Sept. 30, 1829, _Proceedings, Mass. Hist. Soc._

2d Series, XIV, 341.

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

[223] Meade, I, footnote to 99.

[224] _World's Work_, I, 395.

[225] Gustavus Schmidt in _Louisiana Law Journal_ (1841), I, No. 1,

85-86. Mr. Schmidt's description is of Marshall in the court-room at

Richmond when holding the United States Circuit Court at that place.

Ticknor, Story, and others show that the same was true in Washington.

[226] Quincy: _Figures of the Past_, 242-43.

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

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

[229] _Ib._ I, 522.

[230] Gustavus Schmidt in _Louisiana Law Journal_ (1841), I, No. 1,

85-86.

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

bar.

[232] Related to the author by Thomas Marshall Smith of Baltimore, a

descendant of Marshall. Mr. Smith says that this story has been handed

down through three generations of his family.

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

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

[235] For excellent descriptions of Washington society during Marshall's

period see the letters of Moss Kent, then a Representative in Congress.

These MSS. are in the Library of Congress. Also see Story to his wife,

Feb. 7, 1810, Story, I, 196.

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

[237] This was painted for the Boston Athenæum. See frontispiece in vol.

III. The other portrait by Harding, painted in Richmond (see _supra_,

76), was given to Story who presented it to the Harvard Law School.

[238] White: _Sketch of Chester Harding_, 194-96.

For the Chief Justice to lose or forget articles of clothing was nothing

unusual. "He lost a coat, when he dined at the Secretary of the Navy's,"

writes Story who had been making a search for Marshall's missing

garment. (Story to Webster, March 18, 1828, Story MSS. Mass. Hist. Soc.)

[239] Story, II, 504-05.

[240] Story to Williams, Feb. 16, 1812, _ib._ I, 214.

[241] Story to Fay, Feb. 24, 1812, _ib._ 215.

[242] _Ib._

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

[244] Same to same, March 12, 1812, _ib._ 219.

[245] _Magazine of American History_, XII, 69; and see Quincy: _Figures

of the Past_, 189-90. This tale, gathering picturesqueness as it was

passed by word of mouth during many years, had its variations.

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

[247] Wirt to Delaplaine, Nov. 5, 1818, Kennedy: _Memoirs of the Life of

William Wirt_, II, 85.

[248] Bancroft to his wife, Jan. 23, 1832, Howe: _Life and Letters of

George Bancroft_, I, 202.

[249] Even Jefferson, in his bitterest attacks, never intimated anything

against Marshall's integrity; and Spencer Roane, when assailing with

great violence the opinion of the Chief Justice in M'Culloch _vs._

Maryland (see _infra_, chap, VI), paid a high tribute to the purity of

his personal character.

[250] Ticknor to his father, Feb. 1, 1815, Ticknor: _Life, Letters, and

Journals of George Ticknor_, I, 33.

[251] Description from personal observation, as quoted in Van Santvoord:

_Lives and Judicial Services of the Chief Justices_, footnote to 363.

[252] Ticknor to his father, as cited in note 1, _supra_.

[253] _Memoirs of John Quincy Adams_: Adams, IX, 243.

[254] Wirt to Carr, Dec. 30, 1827, Kennedy, 240. For Story's estimate of

Marshall's personality see Dillon, III, 363-66.

[255] "He was solicitous to hear arguments, and not to decide causes

without hearing them. And no judge ever profited more by them. No matter

whether the subject was new or old; familiar to his thoughts or remote

from them; buried under a mass of obsolete learning, or developed for

the first time yesterday--whatever was its nature, he courted argument,

nay, he demanded it." (Story in Dillon, III, 377; and see vol. II,

177-80, of this work.)

[256] See Story's description of Harper, Duponceau, Rawle, Dallas,

Ingersoll, Lee, and Martin (Story to Fay, Feb. 16, 1808, Story, I,

162-64); and of Pinkney (notes _supra_); also see Warren: _History of

the American Bar_, 257-63. We must remember, too, that Webster,

Hopkinson, Emmet, Wirt, Ogden, Clay, and others of equal ability and

accomplishments, practiced before the Supreme Court when Marshall was

Chief Justice.

[257] Story relates that a single case was argued for nine days. (Story

to Fay, Feb. 16, 1808, Story, I, 162.)

In the Charlestown Bridge case, argued in 1831, the opening counsel on

each side occupied three days. (Story to Ashmun, March 10, 1831, _ib._

II, 51.)

Four years later Story writes: "We have now a case ... which has been

under argument eight days, and will probably occupy five more." (Story

to Fay, March 2, 1835, _ib._ 193.)

In the lower courts the arguments were even longer. "This is the

fourteenth day since this argument was opened. Pinkney ... promised to

speak only two hours and a half. He has now spoken two days, and is, at

this moment, at it again for the third day." (Wirt to his wife, April 7,

1821, Kennedy, II, 119.)

[258] Story, I, 96.

[259] Story, I, 2. Elisha Story is said to have been one of the

"Indians" who threw overboard the tea at Boston; and he fought at

Lexington. When the Revolution got under way, he entered the American

Army as a surgeon and served for about two years, when he resigned

because of his disgust with the management of the medical department.

(_Ib._)

[260] Story to Duval, March 30, 1803, _ib._ 102.

[261] Story to Williams, June 6, 1805, _ib._ 105-06.

[262] Story, I, 128.

[263] At first, Story supported the Embargo.

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

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

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

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

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

[269] Story, I, 140.

[270] Jefferson to Gallatin, Sept. 27, 1810, _Works_: Ford, XI, footnote

to 152-54.

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

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

[273] Hunt: _Life of Edward Livingston_, 138.

[274] _Ib._ 140.

[275] _Annals_, 10th Cong. 2d Sess. 702.

[276] _Annals_, 11th Cong. 1st and 2d Sess. 323, 327-49, 418-19, 1373,

1617-18, 1694-1702.

[277] See _supra_, 25, 35-41.

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

[279] Cyrus Griffin was educated in England; was a member of the first

Legislature of Virginia after the Declaration of Independence; was a

delegate to the Continental Congress in 1778-81, and again in 1787-88,

and was President of that body during the last year of his service. He

was made President of the Supreme Court of Admiralty, and held that

office until the court was abolished. When the Constitution was adopted,

and Washington elected President, one of his first acts, after the

passage of the Ellsworth Judiciary Law, was to appoint Judge Griffin to

the newly created office of Judge of the United States Court for the

District of Virginia. It is thus evident that Jefferson's statement was

not accurate.

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

[281] Jefferson to Tyler, May 26, 1810, Tyler: _Tyler_, I, 247-48; also

_Works_: Ford, XI, footnote to 141-43.

[282] Jefferson to Gallatin, Sept. 27, 1810, _Works_: Ford, XI, footnote

to 152-54.

[283] Gideon Granger, as Jefferson's Postmaster-General, had lobbied on

the floor of the House for the Yazoo Bill, offering government contracts

for votes. He was denounced by Randolph in one of the most scathing

arraignments ever heard in Congress. (See vol. III, 578-79, of this

work.)

[284] Jefferson to Madison, Oct. 15, 1810, _Works_: Ford, XI, 150-52.

Granger was an eager candidate for the place, and had asked Jefferson's

support. In assuring him that it was given, Jefferson tells Granger of

his "esteem & approbation," and adds that the appointment of "a firm

unequivocating republican" is vital. (Jefferson to Granger, Oct. 22,

1810, _ib._ footnote to 155.)

[285] Hildreth: _History of the United States_, VI, 241; and see Adams:

_U.S._ V, 359-60.

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

[287] Story, I, 212.

[288] Jefferson to Wirt, April 12, 1812, _Works_: Ford, XI, 227.

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

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

[291] 1 Brockenbrough, 206-12.

[292] Jefferson to Wirt, April 12, 1812, _Works_: Ford, XI, 226-27. On

the Batture controversy see Hildreth, VI, 143-48.

[293] The articles of both Jefferson and Livingston are to be found in

Hall's _American Law Journal_ (Philadelphia, 1816), vol. V, 1-91,

113-289. A brief but valuable summary of Livingston's reply to Jefferson

is found in Hunt: _Livingston_, 143-80. For an abstract of Jefferson's

attack, see Randall: _Life of Thomas Jefferson_, III, 266-68.

[294] See Hunt: _Livingston_, 276-80.

[295] Kent to Livingston, May 13, 1814, Hunt: _Livingston_, 181-82. Kent

was appointed Chancellor of the State of New York, Feb. 25, 1814. His

opinions are contained in _Johnson's Chancery Reports_, to which he

refers in this letter.

For twenty years Livingston fought for what he believed to be his rights

to the batture, and, in the end, was successful; but in such fashion

that the full value of the property was only realized by his family long

after his death.

Notwithstanding Jefferson's hostility, Livingston grew in public favor,

was elected to the Louisiana State Legislature and then to Congress,

where his work was notable. Later, in 1829, he was chosen United States

Senator from that State; and, after serving one term, was appointed

Secretary of State by President Jackson. In this office he prepared most

of the President's state papers and wrote Jackson's great Nullification

Proclamation in 1832.

Livingston was then sent as Minister to France and, by his brilliant

conduct of the negotiations over the French Spoliation Claims, secured

the payment of them. He won fame throughout Europe and Spanish America

by his various works on the penal code and code of procedure. In the

learning of the law he was not far inferior to Story and Kent.

Aside from one or two sketches, there is no account of his life except

an inadequate biography by Charles H. Hunt.

[296] Story, I, 186.

[297] Marshall to Story, Sept. 18, 1821, _Proceedings, Mass. Hist. Soc._

2d series, XIV, 330; and see _infra_, 363-64.

[298] Marbury _vs._ Madison.

[299] Marshall to Story, July 13, 1821, _Proceedings, Mass. Hist. Soc._

2d series, XIV, 328-29.