Chapter 18

Although it is universally admitted that Jefferson had a broad, original, and powerful intellect, that he stamped his mind on the institutions of his country, that to no one except Washington is the country more indebted, yet I fail to see that he was transcendently great in anything. He was a good lawyer, a wise legislator, an able diplomatist, a clear writer, and an excellent president; but in none of the spheres he occupied did he reach the most exalted height. As a lawyer he was surpassed by Adams, Burr, and Marshall; as an orator he was nothing at all; as a writer he was not equal to Hamilton and Madison in profundity and power; as a diplomatist he was far below Franklin and even Jay in tact, in patience, and in skill; as a governor he was timid and vacillating; while as a president he is not to be compared with Washington for dignity, for wisdom, for consistency, or executive ability. Yet, on the whole, he has left a great name for giving shape to the institutions of his country, and for intense patriotism. Pre-eminent in no single direction, he was in the main the greatest political genius that has been elevated to the presidential chair; but perhaps greater as a politician than as a statesman in the sense that Pitt, Canning, and Peel were statesmen. He was not made for active life; he was rather a philosopher, wielding power by his pen, casting his searching glance into everything, and leading men by his amiability, his sympathetic nature, his force of character, and his enlightened mind. The question might arise whether Jefferson's greatness was owing to force of circumstances, or to an original, creative intellect, like that of Franklin or Alexander Hamilton. But for the Revolution he might never have been heard of outside his native State. This, however, might be said of most of the men who have figured in American history,--possibly of Washington himself. The great rulers of the world seem to be raised up by Almighty Power, through peculiar training, to a peculiar fitness for the accomplishment of certain ends which they themselves did not foresee,--men like Abraham Lincoln, who was not that sort of man whom Henry Clay or Daniel Webster would probably have selected for the guidance of this mighty nation in the greatest crisis of its history.

AUTHORITIES.

The Life of Jefferson by Parton is the most interesting that I have read and the fullest, but not artistic. He introduces much superfluous matter that had better be left out. As for the other Lives of Jefferson, that by Morse is the best; that of Schouler is of especial interest as to Jefferson's attitude toward slavery and popular education. Randall has written an interesting sketch. For the rest, I would recommend the same authorities as on John Adams in the previous chapter.

JOHN MARSHALL

1755-1835

THE UNITED STATES SUPREME COURT

BY JOHN BASSETT MOORE, LL.D

While the Revolution had severed the tie which bound the colonies to the mother country and had established the independence of the United States, the task of organizing and consolidating the new nation yet remained to be performed. The Articles of Confederation, though designed to form a "perpetual union between the States," constituted in reality but a loose association under which the various commonwealths retained for the most part the powers of independent governments. In the treaty of peace with Great Britain of 1782-83, strong national ground was taken; but the general government was unable to secure the execution of its stipulations. The public debts remained unpaid, for want of power to levy taxes. Commerce between the States as well as with foreign nations was discouraged and rendered precarious by variant and obstructive local regulations. Nor did there exist any judicial authority to which an appeal could be taken for the enforcement of national rights and obligations as against inconsistent State laws and adjudications. These defects were sought to be remedied by the Constitution of the United States. But, as in the case of all other written instruments, the provisions of this document were open to construction. Statesmen and lawyers divided in their interpretation of it, according to their prepossessions for or against the creation and exercise of a strong central authority.

Among the organs of government created by the Constitution was "one Supreme Court," in which, together with such inferior courts as Congress might from time to time establish, was vested "the judicial power of the United States." This power was declared to extend to all cases, in law and equity, arising under the Constitution itself, the laws of the United States, and treaties made under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States should be a party; to controversies between two or more States, between a State and citizens of another State, and between citizens of different States, as well as between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens, or subjects. In all cases affecting ambassadors, other public ministers and consuls, and those in which a State should be a party, the Supreme Court was vested with original jurisdiction, while in all the other enumerated cases its jurisdiction was to be appellate. With the exceptions of suits against a State by individuals, which were excluded by the Eleventh Amendment, the judicial power of the United States remains to-day as it was originally created.

But at the time when the Constitution was made, the importance to which the judicial power would attain in the political system of the United States could not be foreseen. The form was devised, but, like the nation itself, its full proportions remained to be developed. In that development, so far as it has been made by the judiciary, one man was destined to play a pre-eminent part. This man was John Marshall, under whose hand, as James Bryce has happily said, the Constitution "seemed not so much to rise ... to its full stature, as to be gradually unveiled by him, till it stood revealed in the harmonious perfection of the form which its framers had designed." For this unrivalled achievement there has been conceded to Marshall by universal consent the title of Expounder of the Constitution of the United States; and the general approval with which his work is now surveyed is attested by the tribute lately paid to his memory. The observance on the 4th of February, 1901, by a celebration spontaneously national, of the one hundredth anniversary of his assumption of the office of Chief Justice of the United States, is without example in judicial annals. It is therefore a matter of interest not only to every student of American history, but also to every American patriot, to study his career and to acquaint himself with that combination of traits and accidents by which his character and course in life were determined.

John Marshall was born Sept. 24, 1755, in Fauquier County, Virginia, at a small village then called Germantown, but now known as Midland, a station on the Southern Railway not far south of Manassas. His grandfather, John Marshall, the first of the family of whom there appears to be any record, was an emigrant from Wales. He left four sons, the eldest of whom was Thomas Marshall, the father of the Chief Justice. Thomas Marshall, though a man of meagre early education, possessed great natural gifts, and rendered honorable and useful public service both as a member of the Virginia Legislature, and as a soldier in the Revolutionary War, in which he rose to the rank of colonel. His son, John Marshall, was the eldest of fifteen children. Of his mother, whose maiden name was Keith, little is known, but it has been well observed by one of Marshall's biographers, that, as she reared her fifteen children--seven sons and eight daughters--all to mature years, she could have had little opportunity to make any other record for herself, and could hardly have made a better one.

Subsequently to his birth, Marshall's parents removed to an estate called Oak Hill, in the western part of Fauquier County. It was here that in 1775, when nineteen years of age, he heard the call of his country and entered the patriot army as a lieutenant. We have of him at this time the first personal description, written by a kinsman who was an eye-witness of the scene, and preserved in the eulogy delivered by Mr. Binney before the Select and Common Councils of Philadelphia on Sept. 24, 1835. "His figure," says the writer, "I have now before me. He was about six feet high, straight and rather slender, of dark complexion, showing little if any rosy red, yet good health, the outline of the face nearly a circle, and within that, eyes dark to blackness, strong and penetrating, beaming with intelligence and good nature; an upright forehead, rather low, was terminated in a horizontal line by a mass of raven-black hair of unusual thickness and strength; the features of the face were in harmony with this outline, and the temples fully developed. The result of this combination was interesting and very agreeable. The body and limbs indicated agility rather than strength, in which, however, he was by no means deficient. He wore a purple or pale-blue hunting shirt, and trousers of the same material fringed with white. A round black hat, mounted with the buck's tail for a cockade, crowned the figure and the man. He went through the manual exercise by word and motion deliberately pronounced and performed, in the presence of the company, before he required the men to imitate him, and then proceeded to exercise them, with the most perfect temper.... After a few lessons the company were dismissed, and informed that if they wished to hear more about the war, and would form a circle around him, he would tell them what he understood about it.... He addressed the company for something like an hour.... He spoke at the close of his speech of the Minute Battalion about to be raised, and said he was going into it and expected to be joined by many of his hearers. He then challenged an acquaintance to a game of quoits, and they closed the day with foot-races and other athletic exercises, at which there was no betting. He had walked ten miles to the muster field, and returned the same distance on foot to his father's house at Oak Hill, where he arrived a little after sunset."

The patriot forces in which Marshall was enrolled were described as minute-men, of whom it was said by John Randolph that they "were raised in a minute, armed in a minute, marched in a minute, fought in a minute, and vanquished in a minute." Their uniform consisted of homespun hunting shirts, bearing the words "Liberty or Death" in large white letters on the breast, while they wore bucks' tails in their hats and tomahawks and scalping-knives in their belts. We are told, and may readily believe, that their appearance inspired in the enemy not a little apprehension; but we are also assured, and may as readily believe, that this feeling never was justified by any act of cruelty. Their first active service was seen in the autumn of 1775, when they marched for Norfolk, where Lord Dunmore had established his headquarters. They saw their first fighting at Great Bridge, where the British troops were defeated with heavy loss. Subsequently, the Virginia forces to which Marshall belonged joined the army of Washington in New Jersey, and he saw service not only in that State, but also in Pennsylvania and New York, and, later in the war, again in Virginia. In May, 1777, he was appointed a captain. He took part in the battles of Iron Hill and Brandywine. He was also present at Monmouth, at Paulus (or Powles) Hook, and at the capture of Stony Point. He endured the winter's sufferings at Valley Forge, where because of his patience, firmness, and good humor, he won the special regard of the soldiers and his brother-officers. In the course of his military service he often acted as judge-advocate; and he made the acquaintance of Washington and Hamilton, with both of whom he contracted a lasting friendship.

As to the effect of these early experiences on the formation of his opinions, Marshall himself has testified. "I am," said he on a certain occasion, "disposed to ascribe my devotion to the Union, and to a government competent to its preservation, at least as much to casual circumstances as to judgment. I had grown up at a time ... when the maxim, 'United we stand, divided we fall' was the maxim of every orthodox American; and I had imbibed these sentiments so thoroughly that they constituted a part of my being. I carried them with me into the army, where I found myself associated with brave men from different States who were risking life and everything valuable in a common cause; ... and where I was confirmed in the habit of considering America as my country and Congress as my government."

In 1780 Marshall was admitted to the Bar, and after another term of service in the army he began, in 1781, the practice of the law in Fauquier County. His professional attainments must then have been comparatively limited. His education in letters he had derived solely from his father, who was fond of literature and possessed some of the writings of the English masters, and from two gentlemen of classical learning, whose tuition he enjoyed for the brief period of two years. Of legal education he had had, according to our present standards, exceedingly little. It is said that when about eighteen years of age he began the study of Blackstone; but apart from this his legal education seems to have been gained from a short course of lectures by Chancellor Wythe, at William and Mary College, and from such reading as he was able to indulge in during his military service. And yet, removing to Richmond about 1783, he almost immediately rose to professional eminence. "This extraordinary man," said William Wirt, "without the aid of fancy, without the advantages of person, voice, attitude, gesture, or any of the ornaments of an orator, deserves to be considered as one of the most eloquent men in the world, if eloquence may be said to consist of the power of seizing the attention with irresistible force, and never permitting it to elude the grasp until the hearer has received the conviction which the speaker intends.... He possesses one original and almost superhuman faculty,--the faculty of developing a subject by a single glance of his mind, and detecting at once the very point on which every controversy depends."

From 1782 to 1795, Marshall was repeatedly elected to the Virginia Legislature, the last time without his knowledge and against his wishes; and he also served one term as a member of the Executive Council of the State; but, as his residence was for the most part at Richmond, his public service did not seriously interrupt his career at the Bar. His experience in State politics, however, served to deepen his conviction of the need of an efficient and well-organized national government and of restrictions on the power of the States.

In the formation of the Constitution of the United States Marshall had no hand; he was not a member of the convention by which it was framed; but when it was submitted to the several States for their action, he became a determined advocate of its adoption. In the Virginia convention, which was called to act upon that question, the prospects of a favorable decision seemed at first to be most unpromising. Among those who opposed ratification we find the names of Henry, Mason, Grayson, and Monroe, names which sufficiently attest that the opposition was one, not of mere faction or obstruction, but of principle and patriotic feeling. Henry, who had been one of the first in earlier days to sound the note of revolution, saw in the proposed national government a portent to popular liberties. In the office of President he perceived "the likeness of a kingly crown." In the control of the purse and the sword, he foresaw the extinction of freedom. In the power to make treaties, to regulate commerce, and to adopt laws, he discerned an "ambuscade" in which the rights of the States and of the people would be destroyed unawares. To these alarming predictions the advocates of ratification replied with strong and temperate reasoning, and, while Madison was their leader, among those who won distinction in the contest stood Marshall. He argued that the plan adopted by the Federal Convention provided for a "regulated democracy," the only alternative to which was despotism. He contended for the establishment of an efficient government as the only means of assuring popular rights and the preservation of the public faith, violations of which were constantly occurring under the existing government. It is interesting to notice that, in replying to the suggestion that the legislative power of the proposed government would prove to be practically unlimited, he declared: "If they [the United States] were to make a law not warranted by any of the powers enumerated, it would be considered by the judges as an infringement of the Constitution, which they are to guard against.... They would declare it void." In the end the Convention ratified the Constitution by a majority of ten votes, a result probably influenced by the circumstance that it had then been accepted by nine States, and had thus by its terms been established between the adhering commonwealths.

After the organization of the national government Marshall consistently supported the measures of Washington's administrations, including the Jay treaty, and became a leader of the Federalist party, which, in spite of Washington's great personal hold on the people, was in a minority in Virginia. But he did not covet office. He declined the position of Attorney-General of the United States, which was offered to him by Washington, as well as the mission to France as successor to Monroe. In 1797, however, at the earnest solicitation of President Adams, he accepted in a grave emergency the post of envoy-extraordinary and minister-plenipotentiary to that country on a special mission, in which he was associated with Charles Cotesworth Pinckney, of South Carolina, and Elbridge Gerry, of Massachusetts.

Few diplomatic enterprises have had so strange a history. When the plenipotentiaries arrived in Paris, the Directory was at the height of its power, and Talleyrand was its minister of foreign affairs. He at first received the envoys unofficially, but afterwards intimated to them, through his private secretary, that they could not have a public audience of the Directory till their negotiations were concluded. Meanwhile, they were waited upon by various persons, who represented that, in order to effect a settlement of the differences between the two countries, it would be necessary to place a sum of money at the disposal of Talleyrand as a _douceur_ for the ministers (except Merlin, the minister of justice, who was already obtaining enough from the condemnation of vessels), and also to make a loan of money to the government. The plenipotentiaries, though they at first repulsed these suggestions, at length offered to send one of their number to America to consult the government on the subject of a loan, provided that the Directory would in the meantime suspend proceedings against captured American vessels. This offer was not accepted, and the American representatives, after further conference with the French intermediaries, stated that they considered it degrading to their country to carry on further indirect intercourse, and that they had determined to receive no further propositions unless the persons who bore them had authority to treat. In April, 1798, after spending in the French capital six months, during which they had with Talleyrand two unofficial interviews and exchanged with him an ineffectual correspondence, Pinckney and Marshall left Paris, Gerry, to the great dissatisfaction of his government, remaining behind. Marshall was the first to reach the United States. He was greeted with remarkable demonstrations of respect and approbation; for, although his mission was unsuccessful, he had powerfully assisted in maintaining a firm and dignified position in the negotiations. His entrance into Philadelphia "had the _éclat_ of a triumph." It was at a public dinner given to him by members of both Houses of Congress that the sentiment was pronounced, "Millions for defence, but not a cent for tribute." This sentiment has often been ascribed to Pinckney, who is supposed to have uttered it when approached by the unofficial agents in Paris. The correspondence shows, however, that the words employed by Mr. Pinckney were, "No, no; not a sixpence!" The meaning was similar, but the phrase employed at Philadelphia is entitled to a certain immortality of its own.