The Life of John Marshall, Volume 3: Conflict and construction, 1800-1815

THE LIFE OF JOHN MARSHALL

Standard Library Edition

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IN FOUR VOLUMES

VOLUME III

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THE LIFE
OF
JOHN MARSHALL

BY
ALBERT J. BEVERIDGE

Volume III

CONFLICT AND CONSTRUCTION

1800-1815

BOSTON AND NEW YORK
HOUGHTON MIFFLIN COMPANY
The Riverside Press Cambridge

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PREFACE

Marshall's great Constitutional opinions grew out of, or were addressed to, serious public conditions, national in extent. In these volumes the effort is made to relate the circumstances that required him to give to the country those marvelous state papers: for Marshall's opinions were nothing less than state papers and of the first rank. In order to understand the full meaning of his deliverances and to estimate the just value of his labors, it is necessary to know the historical sources of his foremost expositions of the Constitution, and the historical purposes they were intended to accomplish. Without such knowledge, Marshall's finest pronouncements become mere legal utterances, important, to be sure, but colorless and unattractive.

It is worthy of repetition, even in a preface, that the history of the times is a part of his greatest opinions; and that, in the treatment of them a résumé of the events that produced them must be given. For example, the decision of Marbury vs. Madison, at the time and in the manner it was rendered, was compelled by the political situation then existing, unless the principle of judicial supremacy over legislation was to be abandoned. The Judiciary Debate of 1802 in Congress—one of the most brilliant as well as most important legislative engagements in parliamentary history—can no more be overlooked by the student of American Constitutional development, than the opinion of Marshall in Marbury vs. Madison can be disregarded.

Again, in Cohens vs. Virginia, the Chief Justice rises to heights of exalted—almost emotional—eloquence. Yet the case itself was hardly more than a police court controversy. If the trivial fine of itinerant peddlars of lottery tickets were alone involved, Marshall's splendid passages become unnecessary and, indeed, pompous rhetoric. But when the curtains of history are raised, we see the heroic part that Marshall played and realize the meaning of his powerful language. While Marshall's opinion in M'Culloch vs. Maryland, even taken by itself, is a major treatise on constitutional government, it becomes a fascinating chapter in an engaging story, when read in connection with an account of the situation which compelled that outgiving.

The same thing is true of his other historic utterances. Indeed, it may be said that his weightiest opinions were interlocking parts of one great drama.

Much space has been given to the conspiracy and trials of Aaron Burr. The combined story of that adventure and of those prosecutions has not hitherto been told. In the conduct of the Burr trials, Marshall appears in a more intimate and personal fashion than in any other phase of his judicial career; the entire series of events that make up that page of our history is a striking example of the manipulation of public opinion by astute politicians, and is, therefore, useful for the self-guidance of American democracy. Most important of all, the culminating result of this dramatic episode was the definitive establishment of the American law of treason.

In narrating the work of a jurist, the temptation is very strong to engage in legal discussion, and to cite and comment upon the decisions of other courts and the opinions of other judges. This, however, would be the very negation of biography; nor would it add anything of interest or enlightenment to the reader. Such information and analysis are given fully in the various books on Constitutional law and history, in the annotated reports, and in the encyclopædias of law upon the shelves of every lawyer. Care, therefore, has been taken to avoid making any part of the Life of John Marshall a legal treatise.

 

The manuscript of these volumes has been read by Professor Edward Channing of Harvard; Professor Max Farrand of Yale; Professor Edward S. Corwin of Princeton; Professor William E. Dodd of Chicago University; Professor Clarence W. Alvord of the University of Illinois; Professor James A. Woodburn of Indiana University; Professor Charles H. Ambler of the University of West Virginia; Professor Archibald Henderson of the University of North Carolina; Professor D. R. Anderson of Richmond (Va.) College; and Dr. H. J. Eckenrode of Richmond, Virginia.

The manuscript of the third volume has been read by Professor Charles A. Beard of New York; Dr. Samuel Eliot Morison of Harvard; and Mr. Harold J. Laski of Harvard. The manuscript of both the third and fourth volumes has been read, from the lawyer's point of view, by Mr. Arthur Lord of Boston, President of the Massachusetts Bar Association, and by Mr. Charles Martindale of Indianapolis.

The chapters on the Burr conspiracy and trials have been read by Professor Walter Flavius McCaleb of New York; Professor Isaac Joslin Cox of the University of Cincinnati; and Mr. Samuel H. Wandell of New York. Chapter Three of Volume Three (Marbury vs. Madison) has been read by the Honorable Oliver Wendell Holmes, Associate Justice of the Supreme Court of the United States; by the Honorable Philander Chase Knox, United States Senator; and by Mr. James M. Beck of New York. Other special chapters have been read by the Honorable Henry Cabot Lodge, United States Senator; by Professor J. Franklin Jameson of the Department of Historical Research of the Carnegie Institution of Washington; by Professor Charles H. Haskins of Harvard; by Dr. William Draper Lewis of Philadelphia, former Dean of the Law School of the University of Pennsylvania; and by Mr. W. B. Bryan of Washington.

All of these gentlemen have made valuable suggestions of which I have availed myself, and I gratefully acknowledge my indebtedness to them. The responsibility for everything in these volumes, however, is, of course, exclusively mine; and, in stating my appreciation of the comment and criticism with which I have been favored, I do not wish to be relieved of my burden by allowing the inference that any part of it should be assigned to others.

I also owe it to myself again to express my heavy obligation to Mr. Worthington Chauncey Ford, Editor of the Massachusetts Historical Society. As was the case in the preparation of the first two volumes of this work, Mr. Ford has extended to me the resources of his ripe scholarship; while his wise counsel, steady encouragement, and unselfish assistance, have been invaluable in the prosecution of a long and exacting task.

I also again acknowledge my indebtedness to Mr. Lindsay Swift, Editor of the Boston Public Library, who has read with critical care not only the many drafts of the manuscript, but also the proofs of the entire work. Mr.

Swift has given, unstintedly, his rare literary taste and critical accomplishment to the examination of these pages.

I also tender my hearty thanks to Dr. Gardner Weld Allen of Boston, who has generously directed the preparation of the bibliography and personally revised it.

Mr. David Maydole Matteson of Cambridge, Massachusetts, has made the index of these volumes as he made that of the first two volumes, and has combined both indexes into one. In rendering this service, Mr. Matteson has also searched for points where text and notes could be made more accurate; and I wish to express my appreciation of his kindness.

My thanks are also owing to the staff of The Riverside Press, and particularly to Mr. Lanius D. Evans, to whose keen interest and watchful care in the production of this work I am indebted for much of whatever exactitude it may possess.

The manuscript sources have been acknowledged, in all instances, in the footnotes where references to them have been made, except in the case of the letters of Marshall to his relatives, for which I again thank those descendants and connections of the Chief Justice named in the preface to Volumes One and Two. The Hopkinson manuscripts are in the possession of Mr. Edward Hopkinson of Philadelphia, to whom I am indebted for the privilege of inspecting this valuable source and for furnishing me with copies of important letters.

In preparing these volumes, Mr. A. P. C. Griffin, Assistant Librarian, and Mr. John Clement Fitzpatrick, of the Manuscript Division of the Library of Congress, have been even more obliging, if possible, than they were in the preparation of the first part of this work. The officers and their assistants of the Boston Public Library, the Boston Athenæum, the Massachusetts State Library, the Massachusetts Historical Society, the Pennsylvania Historical Society, the Virginia State Library, the Indiana State Library, and the Indianapolis City Library, have assisted whole-heartedly in the performance of my labors; and I am glad of the opportunity to thank all of them for their interest and help.

Albert J. Beveridge

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CONTENTS

reëlected—Impeachment the next move. IV. IMPEACHMENT 157      Republicans plan to subjugate the Judiciary—Federalist Judges to be ousted and Republicans put in their places—Marshall's decision in United States vs. Fisher—The Republican impeachment programme carried out—The trial and the conviction of Judge Addison—The removal of Judge Pickering—The House impeaches Justice Chase of the Supreme Court—Republicans manipulate public opinion—The articles of impeachment—Federalists convinced that Chase is doomed—Marshall the chief object of attack—His alarm—He proposes radical method of reviewing decisions of the Supreme Court—Reason for Marshall's trepidation—The impeachment trial—Burr presides—He is showered with favors by the Administration—Appearance of Chase—His brilliant array of counsel—Luther Martin of Maryland—Examination of witnesses—Marshall testifies—He makes an unfavorable impression: "too much caution; too much fear; too much cunning"—Arguments of counsel—Weakness of the House managers—They are overwhelmed by counsel for Chase—Joseph Hopkinson's brilliant appeal—He captivates the Senate—Nicholson's fatal admission—Rodney's absurd speech—Luther Martin's great argument—Randolph closes for the managers—He apostrophizes Marshall—His pathetic breakdown—The Senate votes—Tense excitement in the Chamber—Chase acquitted—A determinative event in American history—Independence of the National Judiciary saved—Marshall for the first time secure in the office of Chief Justice. V. BIOGRAPHER 223      Marshall agrees to write the "Life of Washington"—He is unequipped for the task—His grotesque estimate of time, labor, and profits—Jefferson is alarmed—Declares that Marshall is writing for "electioneering purposes"—Postmasters as book agents—They take their cue from Jefferson—Rumor spreads that Marshall's book is to be partisan—Postmasters take few subscriptions—Parson Weems becomes chief solicitor for Marshall's book—His amusing canvass—Marshall is exasperatingly slow—Subscribers are disgusted at delay—First two volumes appear—Public is dissatisfied—Marshall is worried—He writes agitated letters—His publisher becomes disheartened—Marshall resents criticism—The lamentable inadequacy of the first three volumes—Fourth volume an improvement—Marshall's heavy task in the writing of the last volume—He performs it skillfully—Description of the foundation of political parties—Treatment of the policies of Washington's administrations—Jefferson calls Marshall's biography a "five-volume libel" and "a party diatribe"—He seeks an author to answer Marshall—He resolves to publish his "Anas" chiefly as a reply to Marshall—He bitterly attacks him and the biography—Other criticisms of Marshall's work—His lifelong worry over the imperfections of the first edition—He decides to revise it—He devotes nearly twenty years to the task—Work on the Supreme Bench while writing the first edition. VI. THE BURR CONSPIRACY 274      Remarkable effect on the Senate of Burr's farewell speech—His desperate plight—Stanchness of friends—Jefferson's animosity—Unparalleled combination against Burr—He runs for Governor of New York and is defeated—Hamilton's lifelong pursuit of Burr—The historic duel—Dismemberment of the Union long and generally discussed—Washington's apprehensions in 1784—Jefferson in 1803 approves separation of Western country "if it be for their good"—The New England secessionists ask British Minister for support—He promises his aid—Loyalty of the West—War with Spain imminent—People anxious to "liberate" Mexico—Invasion of that country Burr's long-cherished dream—He tries to get money from Great Britain—He promises British Minister to divide the Republic—His first Western journey—The people receive him cordially—He is given remarkable ovation at Nashville—Andrew Jackson's ardent friendship—Burr enthusiastically welcomed at New Orleans—War with Spain seemingly inevitable—Burr plans to lead attack upon Mexico when hostilities begin—Spanish agents start rumors against him—Eastern papers print sensational stories—Burr returns to the Capital—Universal demand for war with Spain—Burr intrigues in Washington—He again starts for the West—He sends his famous cipher dispatch to Wilkinson—Blennerhassett joins Burr—They purchase four hundred thousand acres of land on the Washita River—Plan to settle this land if war not declared—Wilkinson's eagerness for war—Burr arraigned in the Kentucky courts—He is discharged—Cheered by the people—Wilkinson determines to betray Burr—He writes mysterious letters to the President—Jefferson issues his Proclamation—Wilkinson's reign of military lawlessness in New Orleans—Arrest of Burr's agents, Bollmann and Swartwout—Arrest of Adair—Prisoners sent under guard by ship to Washington—The capital filled with wild rumors—Jefferson's slight mention of the Burr conspiracy in his Annual Message—Congress demands explanation—Jefferson sends Special Message denouncing Burr: his "guilt is placed beyond question"—Effect upon the public mind—Burr already convicted in popular opinion. VII. THE CAPTURE AND ARRAIGNMENT 343      Bollmann and Swartwout arrive at Washington and are imprisoned—Adair and Alexander released by the court at Baltimore for want of proof—Eaton's affidavit against Burr—Bollmann and Swartwout apply to Supreme Court for writ of habeas corpus—Senate passes bill suspending the privilege of that writ—The House indignantly rejects the Senate Bill—Marshall delivers the first of his series of opinions on treason—No evidence against Bollmann and Swartwout, and Marshall discharges them—Violent debate in the House—Burr, ignorant of all, starts down the Cumberland and Mississippi with nine boats and a hundred men—First learns in Mississippi of the proceedings against him—Voluntarily surrenders to the civil authorities—The Mississippi grand jury refuses to indict Burr, asserting that he is guilty of no offense—Court refuses to discharge him—Wilkinson's frantic efforts to seize or kill him—He goes into hiding—Court

forfeits his bond—He escapes—He is captured in Alabama and confined to Fort Stoddert—Becomes popular with both officers and men—Taken under military guard for a thousand miles through the wilderness—Arrives at Richmond—Marshall issues warrant for his delivery to the civil authorities—The first hearing before the Chief Justice—Shall Burr be committed for treason—The argument—Marshall's opinion—Probable cause to suspect Burr guilty of attempt to attack Mexico; no evidence upon which to commit Burr for treason—Marshall indirectly criticizes Jefferson—Burr's letters to his daughter—Popular demand for Burr's conviction and execution—Jefferson writes bitterly of Marshall—Administration scours country for evidence against Burr—Expenditure of public money for this purpose—Burr gains friends in Richmond—His attorneys become devoted to him—Marshall attends the famous dinner at the house of John Wickham, not knowing that Burr is to be a guest—He is denounced for doing so—His state of mind. VIII. ADMINISTRATION VERSUS COURT 398      Richmond thronged with visitors—Court opens in the House of Delegates—The hall packed—Dress, appearance, and manner of spectators—Dangerous state of the public temper—Andrew Jackson arrives and publicly denounces Jefferson—He declares trial a "political persecution"—Winfield Scott's opinion: the President the real prosecutor—Grand jury formed and instructed—Believe Burr guilty—Burr's passionate reply to George Hay, the District Attorney—Hay reports to Jefferson—Burr's counsel denounce the Administration's efforts to excite the public against him—Attorneys on both sides speak to the public—Hay moves to commit Burr for treason—Marshall's difficult and dangerous situation—Jefferson instructs Hay—Government offers testimony to support its motion—Luther Martin arrives—Hay again reports to Jefferson, who showers the District Attorney with orders—Burr asks that the court grant a writ of subpœna duces tecum directed to Jefferson—Martin boldly attacks the President—Wirt's clever rejoinder—Jefferson calls Martin that "Federal bulldog"—Wants Martin indicted—Marshall's opinion on Burr's motion for a subpœna duces tecum—He grants the writ—Hay writes Jefferson, who makes able and dignified reply—Wilkinson arrives—Washington Irving's description of him—Testimony before the grand jury—Burr and Blennerhassett indicted for treason and misdemeanor—Violent altercations between counsel. IX. WHAT IS TREASON? 470      Burr becomes popular with Richmond society—Swartwout challenges Wilkinson to a duel—Marshall sets the trial for August 3—The prisoner's life in the penitentiary—Burr's letters to his daughter—Marshall asks his associates on the Supreme Bench for their opinions—Trial begins—Difficulty of selecting a jury—Everybody convinced of Burr's guilt—Hay writes Jefferson that Marshall favors Burr—At last jury is formed—The testimony—No overt act proven—Burr's counsel move that collateral testimony shall not be received—Counsel on both sides make powerful and brilliant arguments—Marshall delivers his famous opinion on the law of constructive treason—Jury returns verdict of not guilty—Jefferson declares Marshall is trying to keep evidence from the public—He directs Hay to press trial on indictment for misdemeanor—Burr demands letters called for in the subpœna duces tecum to Jefferson—President attempts to arrange a truce with the Chief Justice—Hay despairs of convicting Burr for misdemeanor—Trial on this charge begins—Many witnesses examined—Prosecution collapses—Jury returns a verdict of not guilty—Hay moves to hold Burr and his associates for treason committed in Ohio—On this motion Marshall throws the door wide open to all testimony—He delivers his last opinion in the Burr trials—Refuses to hold Burr for treason, but commits him for misdemeanor alleged to have been committed in Ohio—Marshall adjourns court and hurries to the Blue Ridge—He writes Judge Peters of his situation during the trial—Jefferson denounces Marshall in Message he prepares for Congress—Cabinet induces him to strike out the most emphatic language—Marshall scathingly assailed in the press—The mob at Baltimore—Marshall is hanged in effigy—The attempt to expel Senator John Smith of Ohio from the Senate—In his report on Smith case, John Quincy Adams attacks Marshall's rulings and opinion in the Burr trials—Grave foreign complications probably save Marshall from impeachment. X. FRAUD AND CONTRACT 546      The corrupting of the Georgia Legislature in the winter of 1794-95—The methods of bribery—Prominent men involved—Law passed selling thirty-five million acres of land for less than one and one half cents an acre—Land companies pay purchase price and receive deeds—Merits of the transaction—Poverty of Georgia and power of the Indians—Invention of the cotton gin increases land values—Period of mad land speculation—The origin of the contract clause in the Constitution—Wrath of the people of Georgia on learning of the corrupt land legislation—They demand that the venal act be repealed—James Jackson leads the revolt—A new Legislature elected—It "rescinds" the land sale law—Records of the transaction publicly burned—John Randolph visits Georgia—Land companies sell millions of acres to innocent purchasers—Citizens of Boston purchase heavily—The news of Georgia's repeal of the land sale act reaches New England—War of the pamphlets—Georgia cedes to the Nation her claims to the disputed domain—Five million acres are reserved to satisfy claimants—The New England investors petition Congress for relief—Jefferson's commissioners report in favor of the investors—John Randolph's furious assault on the relief bill—He attacks Gideon Granger, Jefferson's Postmaster-General, for lobbying on the floor of the House—The origin of the suit Fletcher vs. Peck—The nature of this litigation—The case is taken to the Supreme Court—Marshall delivers his opinion—Legislation cannot be annulled merely because legislators voting for it were corrupted—"Great principles of justice protect innocent purchasers"—The Georgia land sale act, having been accepted, is a contract—The repeal of that act by the Georgia Legislature is a violation of the contract clause of the Constitution—Justice Johnson dissents—He intimates that Fletcher vs. Peck "is a mere feigned case"—Meaning, purpose, and effect of Marshall's opinion—In Congress, Randolph and Troup of Georgia merci

class="x-ebookmaker-pageno" title="[Pg xvii]"/>lessly assail Marshall and the Supreme Court—The fight for the passage of a bill to relieve the New England investors is renewed—Marshall's opinion and the decision of the court influential in securing the final passage of the measure. APPENDIX A. The Paragraph Omitted from the Final Draft of Jefferson's Message to Congress, December 8, 1801 605 B. Letter of John Taylor "of Caroline" to John Breckenridge containing Arguments for the Repeal of the Federalist National Judiciary Act of 1801 607 C. Cases of which Chief Justice Marshall may have heard before he delivered his Opinion in Marbury vs. Madison 611 D. Text, as generally accepted, of the Cipher Letter of Aaron Burr to James Wilkinson, dated July 29, 1806 614 E. Excerpt from Speech of William Wirt at the Trial of Aaron Burr 616 F. Essential Part of Marshall's Opinion on Constructive Treason delivered at the Trial of Aaron Burr, on Monday, August 31, 1807 619 WORKS CITED IN THIS VOLUME 627

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ILLUSTRATIONS

href="@public@vhost@g@gutenberg@html@files@40445@[email protected]#Page_290" class="pginternal" tag="{http://www.w3.org/1999/xhtml}a">290 After a print presented to the Library of Harvard University by Lucien Carr, Esq., from a plate in the possession of Colonel John Mason Brown, of Louisville, Kentucky, and now inserted in the Library's copy of Wilkinson's Memoirs, Philadelphia, 1816, vol. 1. JOHN MARSHALL 350 From a painting by Richard N. Brooke, on the Gallery Floor of the House of Representatives at the Capitol, Washington, D.C. THE STATE CAPITOL, RICHMOND, VIRGINIA 400 From an old photograph showing its appearance at the time of the Burr trial. It was not then stuccoed, and its bare brick walls were exposed between the columns or pilasters, giving it the appearance of a barnlike structure. LUTHER MARTIN 428 From a portrait in Independence Hall, Philadelphia. JOHN WICKHAM 492 From a portrait in the possession of Henry T. Wickham, Esq., of Richmond, Virginia. JOHN MARSHALL 516 From the portrait by Robert Matthew Sully, a nephew and pupil of Thomas Sully, in the possession of the Corcoran Gallery of Art, Washington, D.C.

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LIST OF ABBREVIATED TITLES MOST FREQUENTLY CITED

All references here are to the List of Authorities at the end of this volume

Adams: U.S. See Adams, Henry. History of the United States.

Ames. See Ames, Fisher. Works.

Channing: Jeff. System. See Channing, Edward. Jeffersonian System, 1801-11.

Channing: U.S. See Channing, Edward. History of the United States.

Chase Trial. See Chase, Samuel. Trial.

Corwin. See Corwin, Edward Samuel. Doctrine of Judicial Review.

Cutler. See Cutler, William Parker, and Julia Perkins. Life, Journals, and Correspondence of Manasseh Cutler.

Dillon. See Marshall, John. Life, Character, and Judicial Services. Edited by John Forrest Dillon.

Eaton: Prentiss. See Eaton, William. Life.

Jay: Johnston. See Jay, John. Correspondence and Public Papers.

Jefferson Writings: Washington. See Jefferson, Thomas, Writings. Edited by Henry Augustine Washington.

King. See King, Rufus. Life and Correspondence.

McCaleb. See McCaleb, Walter Flavius. Aaron Burr Conspiracy.

McMaster: U.S. See McMaster, John Bach. History of the People of the United States.

Marshall. See Marshall, John. Life of George Washington.

Memoirs, J. Q. A.: Adams. See Adams, John Quincy. Memoirs.

Morris. See Morris, Gouverneur. Diary and Letters.

N.E. Federalism: Adams. See New-England Federalism, 1800-1815, Documents relating to. Edited by Henry Adams.

Plumer. See Plumer, William. Life.

Priv. Corres.: Colton. See Clay, Henry. Private Correspondence. Edited by Calvin Colton.

Records Fed. Conv.: Farrand. See Records of the Federal Convention of 1787.

Story. See Story, Joseph. Life and Letters.

Trials of Smith and Ogden. See Smith, William Steuben, and Ogden, Samuel Gouverneur. Trials for Misdemeanors.

Wharton: Social Life. See Wharton, Anne Hollingsworth. Social Life in the Early Republic.

Wharton: State Trials. See Wharton, Francis. State Trials of the United States during the Administrations of Washington and Adams.

Wilkinson: Memoirs. See Wilkinson, James. Memoirs of My Own Times.

Works: Colton. See Clay, Henry. Works.

Works: Ford. See Jefferson, Thomas. Works. Federal Edition. Edited by Paul Leicester Ford.

Writings, J. Q. A.: Ford. See Adams, John Quincy. Writings. Edited by Worthington Chauncey Ford.

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THE LIFE OF JOHN MARSHALL

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