FOOTNOTES:

FOOTNOTES:[856]Marshall to Paulding, April 4, 1835;Lippincott's Magazine(1868), ii, 624-25.[857]Washington to Bushrod Washington, Aug. 27, 1798;Writings: Ford, xiv, 75.[858]Ib.In September, 1797, when Marshall was absent on the X. Y. Z. mission, Washington received a letter from one "John Langhorne" of Albemarle County. Worded with skillful cunning, it was designed to draw from the retired President imprudent expressions that could be used against him and the Federalists. It praised him, denounced his detractors, and begged him to disregard their assaults. (Langhorne to Washington, Sept. 25, 1797;Writings: Sparks, xi, 501.) Washington answered vaguely. (Washington to Langhorne, Oct. 15, 1797;Writings: Ford, xiii, 428-30.) John Nicholas discovered that the Langhorne letter had been posted at Charlottesville; that no person of that name lived in the vicinity; and that Washington's answer was called for at the Charlottesville post-office (where Jefferson posted and received letters) by a person closely connected with the master of Monticello. It was suspected, therefore, that Jefferson was the author of the fictitious letter. The mystery caused Washington much worry and has never been cleared up. (See Washington to Nicholas, Nov. 30, 1797;ib., footnote to 429-30; to Bushrod Washington, March 8, 1798;ib., 448; to Nicholas, March 8, 1798;ib., 449-50.) It is not known what advice Marshall gave Washington when the latter asked for his opinion; but from his lifelong conduct in such matters and his strong repugnance to personal disputes, it is probable that Marshall advised that the matter be dropped.[859]Paulding:Washington, ii, 191-92.[860]Marshall to Paulding,supra.[861]Marshall to Paulding,supra.This letter was in answer to one from Paulding asking Marshall for the facts as to Washington's part in inducing Marshall to run for Congress.[862]Pickering to Marshall, Sept. 20, 1798; Pickering MSS., Mass. Hist. Soc.[863]Ib.[864]Adams to Pickering, Sept. 14, 1798;Works: Adams, viii, 595.[865]Adams to Pickering, Sept. 26, 1798;Works: Adams, viii, 597.[866]Adams to Rush, June 25, 1807;Old Family Letters, 152.[867]Wood, 260. Wood's book was "suppressed" by Aaron Burr, who bought the plates and printer's rights. It consists of dull attacks on prominent Federalists. Jefferson's friends charged that Burr suppressed it because of his friendship for the Federalist leaders. (See Cheetham's letters to Jefferson, Dec. 29, 1801, Jan. 30, 1802,Proceedings, Mass. Hist. Soc. (April and May, 1907) 51-58.) Soon afterward Jefferson began his warfare on Burr.[868]Marshall to Pickering, Oct. 15, 1798; Pickering MSS., Mass. Hist. Soc. This campaign was unusually acrimonious everywhere. "This Electioneering is worse than the Devil." (Smith to Bayard, Aug. 2, 1798;Bayard Papers: Donnan, 69.)[869]See Statutes at Large, 566, 570, 577, for Alien Acts of June 18, June 25, and July 6, andib., 196, for Sedition Law of July 14, 1798.[870]This section was not made a campaign issue by the Republicans.[871]Jefferson to Madison, May 10, 1798;Works: Ford, viii, 417; and to Monroe, May 21, 1798;ib., 423. Jefferson's first harsh word was to Madison, June 7, 1798;ib., 434.[872]Hamilton to Wolcott, June 29, 1798;Works: Lodge, x, 295.[873]Madison to Jefferson, May 20, 1798;Writings: Hunt, vi, 320.[874]For the Federalists' justification of the Alien and Sedition Laws see Gibbs, ii, 78et seq.[875]As a matter of fact, the anger of Republican leaders was chiefly caused by their belief that the Alien and Sedition Laws were aimed at the Republican Party as such, and this, indeed, was true.[876]Jefferson to S. T. Mason, Oct. 11, 1798;Works: Ford, viii, 450.[877]Washington to Spotswood, Nov. 22, 1798;Writings: Ford, xiv, 121-22.[878]Washington to Murray, Dec. 26, 1798;Writings: Ford, xiv, 132.[879]Washington to Bushrod Washington, Dec. 31, 1798;ib., 135-36. Judge Addison's charge was an able if intemperate interpretation of the Sedition Law. The Republican newspapers assailed and ridiculed this very effectively in the presidential campaign of 1800. "Alexander Addison has published in a volume a number of hischargesto juries—andpreciouscharges they are—brimstone and saltpetre, assifœtida and train oil." (Aurora, Dec. 6, 1800. See Chief Justice Ellsworth's comments upon Judge Addison's charge in Flanders, ii, 193.)[880]Marshall to Pickering, Aug. 11, 1798; Pickering MSS., Mass. Hist. Soc.[881]Oct. 11, 1798. The questions of "Freeholder" were, undoubtedly, written with Marshall's knowledge. Indeed a careful study of them leads one to suspect that he wrote or suggested them himself.[882]TheTimes and Virginia Advertiser, Alexandria, Virginia, October 11, 1798. This paper, however, does not give "Freeholder's" questions. TheColumbian Centinel, Boston, October 20, 1798, prints both questions and answers, but makes several errors in the latter. The correct version is given in Appendix III,infra, where "Freeholder's" questions and Marshall's answers appear in full.[883]Ames to Gore, Dec. 18, 1798;Works: Ames, i, 245-47.[884]Sedgwick to Pickering, Oct. 23, 1798; Pickering MSS., Mass. Hist. Soc.[885]Columbian Centinel(Boston), Oct. 24, 1798.[886]Cabot to King, April 26, 1799; King, iii, 9.[887]This was not true. The Fairfax embarrassment, alone, caused Marshall to go to France in 1797.[888]Pickering to Sedgwick, Nov. 6, 1798; Pickering MSS., Mass. Hist. Soc.[889]Murray to J. Q. Adams, March 22, 1799;Letters: Ford, 530. Murray had been a member of Congress and a minor Federalist politician. By "us" he means the extreme Federalist politicians.[890]Marshall to Pickering, Oct. 22, 1798; Pickering MSS., Mass. Hist. Soc.[891]Adams:Gallatin, 212.[892]"Freeholder" had not asked Marshall what he thought of the constitutionality of these laws.[893]Thompson:The Letters of Curtius.John Thompson of Petersburg was one of the most brilliant young men that even Virginia ever produced. See Adams:Gallatin, 212, 227. There is an interesting resemblance between the uncommon talents and fate of young John Thompson and those of Francis Walker Gilmer. Both were remarkably intellectual and learned; the characters of both were clean, fine, and high. Both were uncommonly handsome men. Neither of them had a strong physical constitution; and both died at a very early age. Had John Thompson and Francis Walker Gilmer lived, their names would have been added to that wonderful list of men that the Virginia of that period gave to the country.The intellectual brilliancy and power, and the lofty character of Thompson and Gilmer, their feeble physical basis and their early passing seem like the last effort of that epochal human impulse which produced Henry, Madison, Mason, Jefferson, Marshall, and Washington.[894]Taylor to Jefferson, June 25, 1798; as quoted inBranch Historical Papers, ii, 225. See entire letter,ib., 271-76.[895]For an excellent treatment of the Kentucky and Virginia Resolutions see Von Holst:Constitutional History of the United States, i, chap. iv.[896]Nicholas to Jefferson, Oct. 5, 1798; quoted by Channing in "Kentucky Resolutions of 1798";Amer. Hist. Rev., xx, no. 2, Jan., 1915, 333-36.[897]Writing nearly a quarter of a century later, Jefferson states that Nicholas, Breckenridge, and he conferred on the matter; that his draft of the "Kentucky Resolutions" was the result of this conference; and that he "strictly required" their "solemn assurance" that no one else should know that he was their author. (Jefferson to Breckenridge, Dec. 11, 1821;Works: Ford, viii, 459-60.)Although this letter of Jefferson is positive and, in its particulars, detailed and specific, Professor Channing has demonstrated that Jefferson's memory was at fault; that no such conference took place; and that Jefferson sent the resolutions to Nicholas, who placed them in the hands of Breckenridge for introduction in the Kentucky Legislature; and that Breckenridge and Nicholas both thought that the former should not even see Jefferson, lest the real authorship of the resolutions be detected. (See "The Kentucky Resolutions": Channing, inAmer. Hist. Rev., xx, no. 2, Jan., 1915, 333-36.)[898]See Jefferson's "Rough Draught" and "Fair Copy" of the Kentucky Resolutions; and the resolutions as the Kentucky Legislature passed them on Nov. 10, 1798;Works: Ford, viii, 458-79. See examination of Marshall's opinion in Marburyvs.Madison, vol.iiiof this work.[899]Jefferson to Madison, Nov. 17, 1798;Works: Ford, viii, 457.[900]Writings: Hunt, vi, 326-31.[901]Davie to Iredell, June 17, 1799; quoting from a Virginia informant—very probably Marshall; McRee, ii, 577.[902]Iredell to Mrs. Iredell; Jan. 24, 1799; McRee, ii, 543.[903]Murray to J. Q. Adams, April 1, 1799; quoting Marshall to Sykes, Dec. 18, 1798;Letters: Ford, 534.[904]Writings: Hunt, vi, 332-40.[905]For Marshall's defense of the liberty of the press, quoted by Madison, seesupra, chap.viii.[906]Address of the General Assembly to the People of the Commonwealth of Virginia, Journal, H.D. (Dec., 1798), 88-90.[907]Sedgwick to Hamilton, Feb. 7, 1799;Works: Hamilton, vi, 392-93; and to King, March 20, 1799; King, ii, 581. And Murray to J. Q. Adams, April 5, 1799;Letters: Ford, 536.[908]Address of the Minority: Journal, H.D. (Dec., 1798), 88-90. Also printed as a pamphlet. Richmond, 1798.[909]Journal, H.D. (1799), 90.[910]Callender:Prospect Before Us, 91.[911]Ib., 112et seq.[912]Sedgwick to King, March 20, 1799; King, ii, 581.[913]Murray to J. Q. Adams, April 5, 1799;Letters: Ford, 536.[914]Mordecai, 202; also Sedgwick to King, Nov. 15, 1799; King, iii, 147-48.[915]Jefferson to Pendleton, Feb. 14, 1799;Works: Ford, ix, 46; and to Madison, Jan. 30, 1799;ib., 31.[916]Jefferson to Bishop James Madison, Feb. 27, 1799;ib., 62.[917]Marshall to Washington, Jan. 8, 1799; Washington MSS., Lib. Cong.[918]Hamilton to Dayton, 1799;Works: Lodge, x, 330. The day of the month is not given, but it certainly was early in January. Mr. Lodge places it before a letter to Lafayette, dated Jan. 6, 1799.[919]Hamilton to Sedgwick, Feb. 2, 1799;Works: Lodge, x, 340-42.[920]This was probably true; it is thoroughly characteristic and fits in perfectly with his well-authenticated conduct after he became Chief Justice. (See vol.iiiof this work.)[921]Callender:Prospect Before Us, 90et seq.[922]See Hildreth, v, 104, 210, 214, 340, 453-55.[923]Wood, 261-62. This canard is an example of the methods employed in political contests when American democracy was in its infancy.[924]Marshall to his brother James M., April 3, 1799; MS. Marshall uses the word "faction" in the sense in which it was then employed. "Faction" and "party" were at that time used interchangeably; and both words were terms of reproach. (Seesupra, chap.ii.) If stated in the vernacular of the present day, this doleful opinion of Marshall would read: "Nothing, I believe, more debases or pollutes the human mind than partisan politics."[925]Jefferson to Pendleton, April 22, 1799;Works: Ford, ix, 64-65.[926]Henry to Blair, Jan. 8, 1799; Henry, ii, 591-94.[927]Henry to Blair, Jan. 8, 1799; Henry, ii, 595.[928]Virginia Herald(Fredericksburg), March 5, 1799.[929]This was true in most of the States at that period.[930]This method of electing public officials was continued until the Civil War. (See John S. Wise's description of a congressional election in Virginia in 1855; Wise:The End of An Era, 55-56. And see Professor Schouler's treatment of this subject in his "Evolution of the American Voter";Amer. Hist. Rev., ii, 665-74.)[931]This account of election day in the Marshall-Clopton contest is from Munford, 208-10. For another fairly accurate but mild description of a congressional election in Virginia at this period, see Mary Johnston's novel,Lewis Rand, chap. iv.[932]Henry, ii, 598.[933]Randall, ii, 495.[934]Washington to Marshall, May 5, 1799;Writings: Ford, xiv, 180.[935]As a matter of fact, they were not far wrong. Marshall almost certainly would have been made Secretary of State if Washington had believed that he would accept the portfolio. (Seesupra, 147.) The assertion that the place actually had been offered to Marshall seems to have been the only error in this campaign story.[936]Marshall to Washington, May 1, 1799;Writings: Ford, xiv, footnote to 180-81; also Flanders, ii, 389.[937]Washington to Marshall, May 5, 1799;Writings: Ford, xiv, 180.[938]Marshall to Washington, May 16, 1799; Washington MSS., Lib. Cong.[939]Pickering to King, May 4, 1799; King, iii, 13.[940]Sedgwick to King, July 26, 1799; King, iii, 69.[941]Sedgwick to King, July 26, 1799; King, iii, 69.[942]Murray to J. Q. Adams, June 25, 1799;Letters: Ford, 566.[943]Murray to J. Q. Adams, July 1, 1799;ib., 568.[944]Jefferson to Stuart, May 14, 1799;Works: Ford, ix, 67.[945]Jefferson to Coxe, May 21, 1799;Works: Ford, ix, 69-70.[946]Ib., 70.[947]For instances of these military letters, see Marshall to Washington, June 12, 1799; Washington MSS., Lib. Cong.[948]See Morison, i, 156-57; also Hudson:Journalism in the United States, 160. Party newspapers and speakers to-day make statements, as a matter of course, in every political campaign much more violent than those for which editors and citizens were fined and imprisoned in 1799-1800. (Seeib., 315; and see summary from the Republican point of view of these prosecutions in Randall, ii, 416-20.)[949]Adams to Pickering, July 24, 1799;Works: Adams, ix, 3.[950]Adams to Pickering, Aug. 1, 1799;ib., 5; and same to same. Aug. 3, 1799;ib., 7.[951]Professor Washington, in his edition of Jefferson'sWritings, leaves a blank after "apostle." Mr. Ford correctly prints Marshall's name as it is written in Jefferson's original manuscript copy of the letter.[952]Jefferson to Wilson Cary Nicholas, Sept. 5, 1799;Works: Ford, ix, 79-81.[953]Marshall to Pickering, Aug. 25, 1799; Pickering MSS., Mass. Hist. Soc. Marshall had not yet grasped the deadly significance of Jefferson's States' Rights and Nullification maneuver.[954]Supra.[955]Talleyrand to Pichon, Aug. 28, and Sept. 28;Am. St. Prs., ii, 241-42; Murray to Adams, Appendix ofWorks: Adams, viii. For familiar account of Pichon's conferences with Murray, see Murray's letters to J. Q. Adams, then U.S. Minister to Berlin, inLetters: Ford, 445, 473, 475-76; and to Pickering,ib., 464.[956]"Murray, I guess, wanted to make himself a greater man than he is by going to France," was Gallatin's shrewd opinion. Gallatin to his wife, March 1, 1799; Adams:Gallatin, 227-28.[957]Ib.[958]Ames to Dwight, Feb. 27, 1799;Works: Ames, i, 252.[959]Cabot to King, March 10, 1799; King, ii, 551.[960]Cabot to King, Feb. 16, 1799;ib., 543.[961]Ames to Pickering, March 12, 1799;Works: Ames, i, 253.[962]Ames to Pickering, Oct. 19, 1799;ib., 257.[963]Uriah Tracy to McHenry, Sept. 2, 1799; Steiner, 417.[964]Ames to Pickering, Nov. 5, 1799;Works: Ames, i, 260-61.[965]Ames to Pickering, March 12, 1799;Works: Ames, i, 254.[966]"Men of principal influence in the Federal party ... began to entertain serious doubts about his [Adams's] fitness for the station, yet ... they thought it better to indulge their hopes than to listen to their fears, [and] ... determined to support Mr. Adams for the Chief Magistracy." ("Public Conduct, etc., John Adams"; Hamilton:Works: Lodge, vii, 318.)[967]Ames to Dwight, Feb. 27, 1799;Works: Ames, i, 252.[968]Ames to Pickering, Nov. 5, 1799;ib., 260.[969]Cabot to King, March 10, 1799; King, ii, 552.[970]Higginson to Pickering, April 16, 1800; Pickering MSS., Mass. Hist. Soc., printed inAn. Rept., Amer. Hist. Assn., 1896, i, 836.[971]For an excellent summary of this important episode in our history see Allen:Our Naval War with France.[972]Pickering to King, March 6, 1799; King, ii, 548-49.[973]Ames to Pickering, March 12, 1799;Works: Ames, i, 254.[974]Ames to Dwight, Oct. 20, 1799;ib., 259.[975]Ames to Pickering, Oct. 19, 1799;ib., 257.[976]Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 403.[977]Jefferson to Pendleton, Feb. 19, 1799;Works: Ford, ix, 54.[978]Lee to Adams, March 14, 1799;Works: Adams, viii, 628.[979]Adams to Lee, March 29, 1799;ib., 629.[980]Cabinet to President, Sept. 7, 1799;Works: Adams, ix, 21-23; and same to same, May 20, 1799;ib., 59-60.[981]Adams to Lee, May 21, 1800;ib., 60. For account of Fries's Rebellion see McMaster, ii, 435-39. Also Hildreth, v, 313.[982]Pickering to Cabot, June 15, 1800; Lodge:Cabot, 275.[983]"Public Conduct, etc., John Adams"; Hamilton:Works: Lodge, vii, 351-55; and see Gibbs, ii, 360-62.[984]See Hamilton's arraignment of the Fries pardon in "Public Conduct, etc., John Adams";Works: Lodge, vii, 351-55.[985]McRee, ii, 551.[986]"The Aurora, in analyzing the reasons upon which Fries, Hainy, and Getman have been pardoned brings the President forward as, by this act, condemning: 1. The tax law which gave rise to the insurrection; 2. The conduct of the officers appointed to collect the tax; 3. The marshal; 4. The witnesses on the part of the United States; 5. The juries who tried the prisoners; 6. The court, both in their personal conduct and in their judicial decisions. In short, every individual who has had any part in passing the law—in endeavoring to execute it, or in bringing to just punishment those who have treasonably violated it." (Gazette of the United States, reviewing bitterly the comment of the Republican organ on Adams's pardon of Fries.)[987]Many Federalists regretted that Fries was not executed by court-martial. "I suppose military execution was impracticable, but if some executions are not had, of the most notorious offenders—I shall regret the events of lenity in '94 & '99—as giving a fatal stroke to Government.... Undue mercy to villains, is cruelty to all the good & virtuous. Our people in this State are perfectly astonished, that cost must continually be incurred for insurrections in Pennsylvania for which they say they are taxed & yet no punishment is inflicted on the offenders. I am fatigued & mortified that our Govt. which is weak at best, would withhold any of its strength when all its energies should be doubled." (Uriah Tracy to McHenry, on Fries, May 6, 1799; Steiner, 436.) And "I am in fear that something will occur to release that fellow from merited Death." (Same to same, May 20, 1790;ib.)[988]"Public Conduct, etc., John Adams"; Hamilton:Works: Lodge, vii, 351-55.[989]Ames to Pickering, Nov. 23, 1799;Works: Ames, i, 270.[990]Troup to King, May 6, 1799; King, iii, 14.[991]Adams's home, now Quincy, Massachusetts.[992]Troup to King, June 5, 1799; King, iii, 34.

[856]Marshall to Paulding, April 4, 1835;Lippincott's Magazine(1868), ii, 624-25.

[857]Washington to Bushrod Washington, Aug. 27, 1798;Writings: Ford, xiv, 75.

[858]Ib.In September, 1797, when Marshall was absent on the X. Y. Z. mission, Washington received a letter from one "John Langhorne" of Albemarle County. Worded with skillful cunning, it was designed to draw from the retired President imprudent expressions that could be used against him and the Federalists. It praised him, denounced his detractors, and begged him to disregard their assaults. (Langhorne to Washington, Sept. 25, 1797;Writings: Sparks, xi, 501.) Washington answered vaguely. (Washington to Langhorne, Oct. 15, 1797;Writings: Ford, xiii, 428-30.) John Nicholas discovered that the Langhorne letter had been posted at Charlottesville; that no person of that name lived in the vicinity; and that Washington's answer was called for at the Charlottesville post-office (where Jefferson posted and received letters) by a person closely connected with the master of Monticello. It was suspected, therefore, that Jefferson was the author of the fictitious letter. The mystery caused Washington much worry and has never been cleared up. (See Washington to Nicholas, Nov. 30, 1797;ib., footnote to 429-30; to Bushrod Washington, March 8, 1798;ib., 448; to Nicholas, March 8, 1798;ib., 449-50.) It is not known what advice Marshall gave Washington when the latter asked for his opinion; but from his lifelong conduct in such matters and his strong repugnance to personal disputes, it is probable that Marshall advised that the matter be dropped.

[859]Paulding:Washington, ii, 191-92.

[860]Marshall to Paulding,supra.

[861]Marshall to Paulding,supra.This letter was in answer to one from Paulding asking Marshall for the facts as to Washington's part in inducing Marshall to run for Congress.

[862]Pickering to Marshall, Sept. 20, 1798; Pickering MSS., Mass. Hist. Soc.

[863]Ib.

[864]Adams to Pickering, Sept. 14, 1798;Works: Adams, viii, 595.

[865]Adams to Pickering, Sept. 26, 1798;Works: Adams, viii, 597.

[866]Adams to Rush, June 25, 1807;Old Family Letters, 152.

[867]Wood, 260. Wood's book was "suppressed" by Aaron Burr, who bought the plates and printer's rights. It consists of dull attacks on prominent Federalists. Jefferson's friends charged that Burr suppressed it because of his friendship for the Federalist leaders. (See Cheetham's letters to Jefferson, Dec. 29, 1801, Jan. 30, 1802,Proceedings, Mass. Hist. Soc. (April and May, 1907) 51-58.) Soon afterward Jefferson began his warfare on Burr.

[868]Marshall to Pickering, Oct. 15, 1798; Pickering MSS., Mass. Hist. Soc. This campaign was unusually acrimonious everywhere. "This Electioneering is worse than the Devil." (Smith to Bayard, Aug. 2, 1798;Bayard Papers: Donnan, 69.)

[869]See Statutes at Large, 566, 570, 577, for Alien Acts of June 18, June 25, and July 6, andib., 196, for Sedition Law of July 14, 1798.

[870]This section was not made a campaign issue by the Republicans.

[871]Jefferson to Madison, May 10, 1798;Works: Ford, viii, 417; and to Monroe, May 21, 1798;ib., 423. Jefferson's first harsh word was to Madison, June 7, 1798;ib., 434.

[872]Hamilton to Wolcott, June 29, 1798;Works: Lodge, x, 295.

[873]Madison to Jefferson, May 20, 1798;Writings: Hunt, vi, 320.

[874]For the Federalists' justification of the Alien and Sedition Laws see Gibbs, ii, 78et seq.

[875]As a matter of fact, the anger of Republican leaders was chiefly caused by their belief that the Alien and Sedition Laws were aimed at the Republican Party as such, and this, indeed, was true.

[876]Jefferson to S. T. Mason, Oct. 11, 1798;Works: Ford, viii, 450.

[877]Washington to Spotswood, Nov. 22, 1798;Writings: Ford, xiv, 121-22.

[878]Washington to Murray, Dec. 26, 1798;Writings: Ford, xiv, 132.

[879]Washington to Bushrod Washington, Dec. 31, 1798;ib., 135-36. Judge Addison's charge was an able if intemperate interpretation of the Sedition Law. The Republican newspapers assailed and ridiculed this very effectively in the presidential campaign of 1800. "Alexander Addison has published in a volume a number of hischargesto juries—andpreciouscharges they are—brimstone and saltpetre, assifœtida and train oil." (Aurora, Dec. 6, 1800. See Chief Justice Ellsworth's comments upon Judge Addison's charge in Flanders, ii, 193.)

[880]Marshall to Pickering, Aug. 11, 1798; Pickering MSS., Mass. Hist. Soc.

[881]Oct. 11, 1798. The questions of "Freeholder" were, undoubtedly, written with Marshall's knowledge. Indeed a careful study of them leads one to suspect that he wrote or suggested them himself.

[882]TheTimes and Virginia Advertiser, Alexandria, Virginia, October 11, 1798. This paper, however, does not give "Freeholder's" questions. TheColumbian Centinel, Boston, October 20, 1798, prints both questions and answers, but makes several errors in the latter. The correct version is given in Appendix III,infra, where "Freeholder's" questions and Marshall's answers appear in full.

[883]Ames to Gore, Dec. 18, 1798;Works: Ames, i, 245-47.

[884]Sedgwick to Pickering, Oct. 23, 1798; Pickering MSS., Mass. Hist. Soc.

[885]Columbian Centinel(Boston), Oct. 24, 1798.

[886]Cabot to King, April 26, 1799; King, iii, 9.

[887]This was not true. The Fairfax embarrassment, alone, caused Marshall to go to France in 1797.

[888]Pickering to Sedgwick, Nov. 6, 1798; Pickering MSS., Mass. Hist. Soc.

[889]Murray to J. Q. Adams, March 22, 1799;Letters: Ford, 530. Murray had been a member of Congress and a minor Federalist politician. By "us" he means the extreme Federalist politicians.

[890]Marshall to Pickering, Oct. 22, 1798; Pickering MSS., Mass. Hist. Soc.

[891]Adams:Gallatin, 212.

[892]"Freeholder" had not asked Marshall what he thought of the constitutionality of these laws.

[893]Thompson:The Letters of Curtius.John Thompson of Petersburg was one of the most brilliant young men that even Virginia ever produced. See Adams:Gallatin, 212, 227. There is an interesting resemblance between the uncommon talents and fate of young John Thompson and those of Francis Walker Gilmer. Both were remarkably intellectual and learned; the characters of both were clean, fine, and high. Both were uncommonly handsome men. Neither of them had a strong physical constitution; and both died at a very early age. Had John Thompson and Francis Walker Gilmer lived, their names would have been added to that wonderful list of men that the Virginia of that period gave to the country.The intellectual brilliancy and power, and the lofty character of Thompson and Gilmer, their feeble physical basis and their early passing seem like the last effort of that epochal human impulse which produced Henry, Madison, Mason, Jefferson, Marshall, and Washington.

The intellectual brilliancy and power, and the lofty character of Thompson and Gilmer, their feeble physical basis and their early passing seem like the last effort of that epochal human impulse which produced Henry, Madison, Mason, Jefferson, Marshall, and Washington.

[894]Taylor to Jefferson, June 25, 1798; as quoted inBranch Historical Papers, ii, 225. See entire letter,ib., 271-76.

[895]For an excellent treatment of the Kentucky and Virginia Resolutions see Von Holst:Constitutional History of the United States, i, chap. iv.

[896]Nicholas to Jefferson, Oct. 5, 1798; quoted by Channing in "Kentucky Resolutions of 1798";Amer. Hist. Rev., xx, no. 2, Jan., 1915, 333-36.

[897]Writing nearly a quarter of a century later, Jefferson states that Nicholas, Breckenridge, and he conferred on the matter; that his draft of the "Kentucky Resolutions" was the result of this conference; and that he "strictly required" their "solemn assurance" that no one else should know that he was their author. (Jefferson to Breckenridge, Dec. 11, 1821;Works: Ford, viii, 459-60.)Although this letter of Jefferson is positive and, in its particulars, detailed and specific, Professor Channing has demonstrated that Jefferson's memory was at fault; that no such conference took place; and that Jefferson sent the resolutions to Nicholas, who placed them in the hands of Breckenridge for introduction in the Kentucky Legislature; and that Breckenridge and Nicholas both thought that the former should not even see Jefferson, lest the real authorship of the resolutions be detected. (See "The Kentucky Resolutions": Channing, inAmer. Hist. Rev., xx, no. 2, Jan., 1915, 333-36.)

Although this letter of Jefferson is positive and, in its particulars, detailed and specific, Professor Channing has demonstrated that Jefferson's memory was at fault; that no such conference took place; and that Jefferson sent the resolutions to Nicholas, who placed them in the hands of Breckenridge for introduction in the Kentucky Legislature; and that Breckenridge and Nicholas both thought that the former should not even see Jefferson, lest the real authorship of the resolutions be detected. (See "The Kentucky Resolutions": Channing, inAmer. Hist. Rev., xx, no. 2, Jan., 1915, 333-36.)

[898]See Jefferson's "Rough Draught" and "Fair Copy" of the Kentucky Resolutions; and the resolutions as the Kentucky Legislature passed them on Nov. 10, 1798;Works: Ford, viii, 458-79. See examination of Marshall's opinion in Marburyvs.Madison, vol.iiiof this work.

[899]Jefferson to Madison, Nov. 17, 1798;Works: Ford, viii, 457.

[900]Writings: Hunt, vi, 326-31.

[901]Davie to Iredell, June 17, 1799; quoting from a Virginia informant—very probably Marshall; McRee, ii, 577.

[902]Iredell to Mrs. Iredell; Jan. 24, 1799; McRee, ii, 543.

[903]Murray to J. Q. Adams, April 1, 1799; quoting Marshall to Sykes, Dec. 18, 1798;Letters: Ford, 534.

[904]Writings: Hunt, vi, 332-40.

[905]For Marshall's defense of the liberty of the press, quoted by Madison, seesupra, chap.viii.

[906]Address of the General Assembly to the People of the Commonwealth of Virginia, Journal, H.D. (Dec., 1798), 88-90.

[907]Sedgwick to Hamilton, Feb. 7, 1799;Works: Hamilton, vi, 392-93; and to King, March 20, 1799; King, ii, 581. And Murray to J. Q. Adams, April 5, 1799;Letters: Ford, 536.

[908]Address of the Minority: Journal, H.D. (Dec., 1798), 88-90. Also printed as a pamphlet. Richmond, 1798.

[909]Journal, H.D. (1799), 90.

[910]Callender:Prospect Before Us, 91.

[911]Ib., 112et seq.

[912]Sedgwick to King, March 20, 1799; King, ii, 581.

[913]Murray to J. Q. Adams, April 5, 1799;Letters: Ford, 536.

[914]Mordecai, 202; also Sedgwick to King, Nov. 15, 1799; King, iii, 147-48.

[915]Jefferson to Pendleton, Feb. 14, 1799;Works: Ford, ix, 46; and to Madison, Jan. 30, 1799;ib., 31.

[916]Jefferson to Bishop James Madison, Feb. 27, 1799;ib., 62.

[917]Marshall to Washington, Jan. 8, 1799; Washington MSS., Lib. Cong.

[918]Hamilton to Dayton, 1799;Works: Lodge, x, 330. The day of the month is not given, but it certainly was early in January. Mr. Lodge places it before a letter to Lafayette, dated Jan. 6, 1799.

[919]Hamilton to Sedgwick, Feb. 2, 1799;Works: Lodge, x, 340-42.

[920]This was probably true; it is thoroughly characteristic and fits in perfectly with his well-authenticated conduct after he became Chief Justice. (See vol.iiiof this work.)

[921]Callender:Prospect Before Us, 90et seq.

[922]See Hildreth, v, 104, 210, 214, 340, 453-55.

[923]Wood, 261-62. This canard is an example of the methods employed in political contests when American democracy was in its infancy.

[924]Marshall to his brother James M., April 3, 1799; MS. Marshall uses the word "faction" in the sense in which it was then employed. "Faction" and "party" were at that time used interchangeably; and both words were terms of reproach. (Seesupra, chap.ii.) If stated in the vernacular of the present day, this doleful opinion of Marshall would read: "Nothing, I believe, more debases or pollutes the human mind than partisan politics."

[925]Jefferson to Pendleton, April 22, 1799;Works: Ford, ix, 64-65.

[926]Henry to Blair, Jan. 8, 1799; Henry, ii, 591-94.

[927]Henry to Blair, Jan. 8, 1799; Henry, ii, 595.

[928]Virginia Herald(Fredericksburg), March 5, 1799.

[929]This was true in most of the States at that period.

[930]This method of electing public officials was continued until the Civil War. (See John S. Wise's description of a congressional election in Virginia in 1855; Wise:The End of An Era, 55-56. And see Professor Schouler's treatment of this subject in his "Evolution of the American Voter";Amer. Hist. Rev., ii, 665-74.)

[931]This account of election day in the Marshall-Clopton contest is from Munford, 208-10. For another fairly accurate but mild description of a congressional election in Virginia at this period, see Mary Johnston's novel,Lewis Rand, chap. iv.

[932]Henry, ii, 598.

[933]Randall, ii, 495.

[934]Washington to Marshall, May 5, 1799;Writings: Ford, xiv, 180.

[935]As a matter of fact, they were not far wrong. Marshall almost certainly would have been made Secretary of State if Washington had believed that he would accept the portfolio. (Seesupra, 147.) The assertion that the place actually had been offered to Marshall seems to have been the only error in this campaign story.

[936]Marshall to Washington, May 1, 1799;Writings: Ford, xiv, footnote to 180-81; also Flanders, ii, 389.

[937]Washington to Marshall, May 5, 1799;Writings: Ford, xiv, 180.

[938]Marshall to Washington, May 16, 1799; Washington MSS., Lib. Cong.

[939]Pickering to King, May 4, 1799; King, iii, 13.

[940]Sedgwick to King, July 26, 1799; King, iii, 69.

[941]Sedgwick to King, July 26, 1799; King, iii, 69.

[942]Murray to J. Q. Adams, June 25, 1799;Letters: Ford, 566.

[943]Murray to J. Q. Adams, July 1, 1799;ib., 568.

[944]Jefferson to Stuart, May 14, 1799;Works: Ford, ix, 67.

[945]Jefferson to Coxe, May 21, 1799;Works: Ford, ix, 69-70.

[946]Ib., 70.

[947]For instances of these military letters, see Marshall to Washington, June 12, 1799; Washington MSS., Lib. Cong.

[948]See Morison, i, 156-57; also Hudson:Journalism in the United States, 160. Party newspapers and speakers to-day make statements, as a matter of course, in every political campaign much more violent than those for which editors and citizens were fined and imprisoned in 1799-1800. (Seeib., 315; and see summary from the Republican point of view of these prosecutions in Randall, ii, 416-20.)

[949]Adams to Pickering, July 24, 1799;Works: Adams, ix, 3.

[950]Adams to Pickering, Aug. 1, 1799;ib., 5; and same to same. Aug. 3, 1799;ib., 7.

[951]Professor Washington, in his edition of Jefferson'sWritings, leaves a blank after "apostle." Mr. Ford correctly prints Marshall's name as it is written in Jefferson's original manuscript copy of the letter.

[952]Jefferson to Wilson Cary Nicholas, Sept. 5, 1799;Works: Ford, ix, 79-81.

[953]Marshall to Pickering, Aug. 25, 1799; Pickering MSS., Mass. Hist. Soc. Marshall had not yet grasped the deadly significance of Jefferson's States' Rights and Nullification maneuver.

[954]Supra.

[955]Talleyrand to Pichon, Aug. 28, and Sept. 28;Am. St. Prs., ii, 241-42; Murray to Adams, Appendix ofWorks: Adams, viii. For familiar account of Pichon's conferences with Murray, see Murray's letters to J. Q. Adams, then U.S. Minister to Berlin, inLetters: Ford, 445, 473, 475-76; and to Pickering,ib., 464.

[956]"Murray, I guess, wanted to make himself a greater man than he is by going to France," was Gallatin's shrewd opinion. Gallatin to his wife, March 1, 1799; Adams:Gallatin, 227-28.

[957]Ib.

[958]Ames to Dwight, Feb. 27, 1799;Works: Ames, i, 252.

[959]Cabot to King, March 10, 1799; King, ii, 551.

[960]Cabot to King, Feb. 16, 1799;ib., 543.

[961]Ames to Pickering, March 12, 1799;Works: Ames, i, 253.

[962]Ames to Pickering, Oct. 19, 1799;ib., 257.

[963]Uriah Tracy to McHenry, Sept. 2, 1799; Steiner, 417.

[964]Ames to Pickering, Nov. 5, 1799;Works: Ames, i, 260-61.

[965]Ames to Pickering, March 12, 1799;Works: Ames, i, 254.

[966]"Men of principal influence in the Federal party ... began to entertain serious doubts about his [Adams's] fitness for the station, yet ... they thought it better to indulge their hopes than to listen to their fears, [and] ... determined to support Mr. Adams for the Chief Magistracy." ("Public Conduct, etc., John Adams"; Hamilton:Works: Lodge, vii, 318.)

[967]Ames to Dwight, Feb. 27, 1799;Works: Ames, i, 252.

[968]Ames to Pickering, Nov. 5, 1799;ib., 260.

[969]Cabot to King, March 10, 1799; King, ii, 552.

[970]Higginson to Pickering, April 16, 1800; Pickering MSS., Mass. Hist. Soc., printed inAn. Rept., Amer. Hist. Assn., 1896, i, 836.

[971]For an excellent summary of this important episode in our history see Allen:Our Naval War with France.

[972]Pickering to King, March 6, 1799; King, ii, 548-49.

[973]Ames to Pickering, March 12, 1799;Works: Ames, i, 254.

[974]Ames to Dwight, Oct. 20, 1799;ib., 259.

[975]Ames to Pickering, Oct. 19, 1799;ib., 257.

[976]Wolcott to Ames, Aug. 10, 1800; Gibbs, ii, 403.

[977]Jefferson to Pendleton, Feb. 19, 1799;Works: Ford, ix, 54.

[978]Lee to Adams, March 14, 1799;Works: Adams, viii, 628.

[979]Adams to Lee, March 29, 1799;ib., 629.

[980]Cabinet to President, Sept. 7, 1799;Works: Adams, ix, 21-23; and same to same, May 20, 1799;ib., 59-60.

[981]Adams to Lee, May 21, 1800;ib., 60. For account of Fries's Rebellion see McMaster, ii, 435-39. Also Hildreth, v, 313.

[982]Pickering to Cabot, June 15, 1800; Lodge:Cabot, 275.

[983]"Public Conduct, etc., John Adams"; Hamilton:Works: Lodge, vii, 351-55; and see Gibbs, ii, 360-62.

[984]See Hamilton's arraignment of the Fries pardon in "Public Conduct, etc., John Adams";Works: Lodge, vii, 351-55.

[985]McRee, ii, 551.

[986]"The Aurora, in analyzing the reasons upon which Fries, Hainy, and Getman have been pardoned brings the President forward as, by this act, condemning: 1. The tax law which gave rise to the insurrection; 2. The conduct of the officers appointed to collect the tax; 3. The marshal; 4. The witnesses on the part of the United States; 5. The juries who tried the prisoners; 6. The court, both in their personal conduct and in their judicial decisions. In short, every individual who has had any part in passing the law—in endeavoring to execute it, or in bringing to just punishment those who have treasonably violated it." (Gazette of the United States, reviewing bitterly the comment of the Republican organ on Adams's pardon of Fries.)

[987]Many Federalists regretted that Fries was not executed by court-martial. "I suppose military execution was impracticable, but if some executions are not had, of the most notorious offenders—I shall regret the events of lenity in '94 & '99—as giving a fatal stroke to Government.... Undue mercy to villains, is cruelty to all the good & virtuous. Our people in this State are perfectly astonished, that cost must continually be incurred for insurrections in Pennsylvania for which they say they are taxed & yet no punishment is inflicted on the offenders. I am fatigued & mortified that our Govt. which is weak at best, would withhold any of its strength when all its energies should be doubled." (Uriah Tracy to McHenry, on Fries, May 6, 1799; Steiner, 436.) And "I am in fear that something will occur to release that fellow from merited Death." (Same to same, May 20, 1790;ib.)

[988]"Public Conduct, etc., John Adams"; Hamilton:Works: Lodge, vii, 351-55.

[989]Ames to Pickering, Nov. 23, 1799;Works: Ames, i, 270.

[990]Troup to King, May 6, 1799; King, iii, 14.

[991]Adams's home, now Quincy, Massachusetts.

[992]Troup to King, June 5, 1799; King, iii, 34.

The Constitution is not designed to secure the rights of the people of Europe or Asia or to direct proceedings against criminals throughout the universe. (Marshall.)The whole world is in arms and no rights are respected but those that are maintained by force. (Marshall.)Marshall is disposed to express great respect for the sovereign people and to quote their expressions as evidence of truth. (Theodore Sedgwick.)

The Constitution is not designed to secure the rights of the people of Europe or Asia or to direct proceedings against criminals throughout the universe. (Marshall.)

The whole world is in arms and no rights are respected but those that are maintained by force. (Marshall.)

Marshall is disposed to express great respect for the sovereign people and to quote their expressions as evidence of truth. (Theodore Sedgwick.)

"I have been much in Company with General Marshall since we arrived in this City. He possesses great powers and has much dexterity in the application of them. He is highly & deservedly respected by the friends of Government [Federalists] from the South. In short, we can do nothing without him. I believe his intentions are perfectly honorable, & yet I do believe he would have been a more decided man had his education been on the other side of the Delaware, and he the immediate representative of that country."[993]

So wrote the Speaker of the House of Representatives after three weeks of association with the Virginia member whom he had been carefully studying. After another month of Federalist scrutiny, Cabot agreed with Speaker Sedgwick as to Marshall's qualities.

"In Congress, you see Genl. M.[arshall] is a leader. He is I think a virtuous & certainly an able man; but you see in him the faults of a Virginian. He thinks too much of that State, & he expects theworld will be governed according to the Rules of Logic. I have seen such men often become excellent legislators after experience has cured their errors. I hope it will prove so with Genl. M.[arshall], who seems calculated to act a great part."[994]

The first session of the Sixth Congress convened in Philadelphia on December 2, 1799. Marshall was appointed a member of the joint committee of the Senate and the House to wait upon the President and inform him that Congress was in session.[995]

The next day Adams delivered his speech to the Senators and Representatives. The subject which for the moment now inflamed the minds of the members of the President's party was Adams's second French mission. Marshall, of all men, had most reason to resent any new attempt to try once more where he had failed, and to endeavor again to deal with the men who had insulted America and spun about our representatives a network of corrupt intrigue. But if Marshall felt any personal humiliation, he put it beneath his feet and, as we have seen, approved the Ellsworth mission. "The southern federalists have of course been induced [by Marshall] to vindicate the mission, as a sincere, honest, and politic measure," wrote Wolcott to Ames.[996]

Who should prepare the answer of the House to the President's speech? Who best could perform the difficult task of framing a respectful reply which would support the President and yet not offend the rebellious Federalists in Congress? Marshall wasselected for this delicate work. "Mr. Marshall, from the committee appointed to draught an Address in answer to the Speech of the President of the United States ... reported same."[997]Although written in admirable temper, Marshall's address failed to please; the result was pallid.

"Considering the state of the House, it was necessary and proper that the answer to the speech should be prepared by Mr. Marshall," testifies Wolcott. "He has had a hard task to perform, and you have seen how it has been executed. The object was to unite all opinions, at least of the federalists; it was of course necessary to appear to approve the mission, and yet to express the approbation in such terms as when critically analyzed would amount to no approbation at all. No one individual was really satisfied; all were unwilling to encounter the danger and heat which a debate would produce and the address passed with silent dissent; the President doubtless understood the intention, and in his response has expressed his sense of the dubious compliment in terms inimitably obscure."[998]Levin Powell, a Federalist Representative from Virginia, wrote to his brother: "There were members on both sides that disliked that part of it [Marshall's address] where he spoke of the Mission to France."[999]

The mingled depression, excitement, and resentment among Marshall's colleagues must have beengreat indeed to have caused them thus to look upon his first performance in the House; for the address, which, even now, is good reading, is a strong and forthright utterance. While, with polite agreement, gliding over the controverted question of the mission, Marshall's speech is particularly virile when dealing with domestic politics. In coupling Fries's Pennsylvania insurrection with the Kentucky and Virginia Resolutions Marshall displayed as clever political dexterity as even Jefferson himself.

The address enumerates the many things for which Americans ought to thank "the benevolent Deity," and laments "that any portion of the people ... should permit themselves, amid such numerous blessings, tobe seducedby ...designing meninto an open resistance to the laws of the United States.... Under a Constitution where the public burdens can only be imposed by the people themselves, for their own benefit, and to promote their own objects, a hope might well have been indulged that the general interest would have been too well understood, and the general welfare too highly prized, to have produced in any of our citizens a disposition to hazard so much felicity, by the criminal effort of a part, to oppose with lawless violence the will of the whole."[1000]

While it augured well that the courts and militia coöperated with "the military force of the nation" in "restoring order and submission to the laws," still, this only showed the necessity of Adams's "recommendation" that "the judiciary system"should be extended. As to the new French mission, the address "approves the pacific and humane policy" which met, by the appointment of new envoys, "the first indications on the part of the French Republic" of willingness to negotiate; and "offers up fervent prayers to the Supreme Ruler of the Universe for the success of their embassy."

Marshall declares "the present period critical and momentous. The important changes which are occurring, the new and great events which are every hour preparing ... the spirit of war ... prevalent in almost every nation ... demonstrate" the need of providing "means of self-defense." To neglect this duty from "love of ease or other considerations" would be "criminal and fatal carelessness." No one could tell how the new mission would terminate: "It depends not on America alone. The most pacific temper will not ensure peace." Preparation for "national defense ... is an ... obvious duty. Experience the parent of wisdom ... has established the truth ... that ... nothing short of the power of repelling aggression will" save us from "war or national degradation."[1001]

Gregg of Pennsylvania moved to strike out the italicized words in Marshall's address to the President, but after a short debate the motion was defeated without roll-call.[1002]

Wolcott gives us a clear analysis of the political situation and of Marshall's place and power in it at this particular moment: "The federal party is composed of the old members who were generally re-elected in the northern, with new members from the southern states. New York has sent an anti-federal majority; Pennsylvania has done the same; opposition principles are gaining ground in New Jersey and Maryland, and in the present Congress, the votes of these states will be fluctuating and undecided."

Nothing shows more clearly the intimate gossip of the time than the similarity of Wolcott's and Cabot's language in describing Marshall. "A number of distinguished men," continues Wolcott, "appear from the southward, who are not pledged by any act to support the system of the last Congress; these men will pay great respect to the opinions of General Marshall; he is doubtless a man of virtue and distinguished talents, but he will think much of the State of Virginia, and is too much disposed to govern the world according to rules of logic; he will read and expound the constitution as if it were a penal statute, and will sometimes be embarrassed with doubts of which his friends will not perceive the importance."[1003]

Marshall headed the committee to inquire of the President when he would receive the address of the House, and on December 10, "Mr. Speaker, attended by the members present, proceeded to the President's house, to present him their Address in answer to his Speech."[1004]A doleful procession the hostile, despondent, and irritated Representatives made as they trudged along Philadelphia's streets to greet the equally hostile and exasperated Chief Magistrate.

Presidential politics was much more on the minds of the members of Congress than was the legislation needed by the country. Most of the measures and practically all the debates of this remarkable session were shaped and colored by the approaching contest between the Federalists and Republicans and, personally, between Jefferson and Adams. Without bearing this fact in mind the proceedings of this session cannot be correctly understood. A mere reading of the maze of resolutions, motions, and debates printed in the "Annals" leaves one bewildered. The principal topic of conversation was, of course, the impending presidential election. Hamilton's faction of extreme Federalists had been dissatisfied with Adams from the beginning. Marshall writes his brother "in confidence" of the plots these busy politicians were concocting.

"I can tell you in confidence," writes Marshall, "that the situation of our affairs with respect to domestic quiet is much more critical than I had conjectured. The eastern people are very much dissatisfied with the President on account of the late [second] Mission to France. They are strongly disposed to desert him & push some other candidate. King or Ellsworth with one of the Pinckneys—most probably the General, are thought of.

"If they are deter'd from doing this by the fear that the attempt might elect Jefferson I think it not improbable that they will vote generally for Adams & Pinckney so as to give the latter gentleman the best chance if he gets the Southern vote to be President.

"Perhaps this ill humor may evaporate beforethe election comes on—but at present it wears a very serious aspect. This circumstance is rendered the more unpleasant by the state of our finances. The impost received this year has been less productive than usual & it will be impossible to continue the present armament without another loan. Had the impost produced the sum to which it was calculated, a loan would have been unavoidable.

"This difficulty ought to have been foreseen when it was determined to execute the law for raising the army. It is now conceiv'd that we cannot at the present stage of our negotiation with France change the defensive position we have taken without much hazard.

"In addition to this many influential characters not only contend that the army ought not now to be disbanded but that it ought to be continued so long as the war in Europe shall last. I am apprehensive that our people would receive with very ill temper a system which should keep up an army of observation at the expense of the annual addition of five millions to our debt. The effect of it wou'd most probably be that the hands which hold the reins wou'd be entirely chang'd. You perceive the perplexities attending our situation.

"In addition to this there are such different views with respect to the future, such a rancorous malignity of temper among the democrats,[1005]such [an ap]parent disposition—(if the Aurora be the index of the [mind of] those who support it) to propel us to a war with B[ritain] & to enfold us within the embrace of Fran[ce], [s]uch a detestation & fear of France among others [that I] look forward with more apprehension than I have ever done to the future political events of our country."[1006]

On December 18 a rumor of the death of Washington reached the Capital. Marshall notified the House. His grief was so profound that even the dry and unemotional words of the formal congressional reports express it. "Mr. Marshall," says the "Annals" of Congress, "in a voice that bespoke the anguish of his mind, and a countenance expressive of the deepest regret, rose, and delivered himself as follows:—

"Mr. Speaker: Information has just been received, that our illustrious fellow-citizen, the Commander-in-Chief of the American Army, and the late President of the United States, is no more!

"Though this distressing intelligence is not certain, there is too much reason to believe its truth. After receiving information of this national calamity, so heavy and so afflicting, the House of Representatives can be but ill fitted for public business. I move, therefore, they adjourn."[1007]

The next day the news was confirmed, and Marshall thus addressed the House:—

"Mr. Speaker: The melancholy event which wasyesterday announced with doubt, has been rendered but too certain.

"OurWashingtonis no more! The Hero, the Sage, and the Patriot of America—the man on whom in times of danger every eye was turned and all hopes were placed—lives now only in his own great actions, and in the hearts of an affectionate and afflicted people.

"If, sir, it has even not been usual openly to testify respect for the memory of those whom Heaven had selected as its instrument for dispensing good to men, yet such has been the uncommon worth, and such the extraordinary incidents, which have marked the life of him whose loss we all deplore, that the American Nation,[1008]impelled by the same feelings, would call with one voice for a public manifestation of that sorrow which is so deep and so universal.

"More than any other individual, and as much as to one individual was possible, has he contributed to found this our wide-spread empire,[1009]and to give to the Western World its independence and its freedom.

"Having effected the great object for which he was placed at the head of our armies, we have seen him converting the sword into the plough-share, and voluntarily sinking the soldier in the citizen.

"When the debility of our federal system had become manifest, and the bonds which connectedthe parts of this vast continent were dissolving, we have seen him the Chief of those patriots who formed for us a Constitution, which, by preserving the Union, will, I trust, substantiate and perpetuate those blessings our Revolution had promised to bestow.

"In obedience to the general voice of his country, calling on him to preside over a great people, we have seen him once more quit the retirement he loved, and in a season more stormy and tempestuous than war itself, with calm and wise determination, pursue the true interests of the Nation, and contribute, more than any other could contribute, to the establishment of that system of policy which will, I trust, yet preserve our peace, our honor and our independence.

"Having been twice unanimously chosen the Chief Magistrate of a free people, we see him, at a time when his re-election with the universal suffrage could not have been doubted, affording to the world a rare instance of moderation, by withdrawing from his high station to the peaceful walks of private life. However the public confidence may change, and the public affections fluctuate with respect to others, yet with respect to him they have in war and in peace, in public and in private life, been as steady as his own firm mind, and as constant as his own exalted virtues.

"Let us, then, Mr. Speaker, pay the last tribute of respect and affection to our departed friend—let the Grand Council of the Nation display those sentiments which the Nation feels. For this purposeI hold in my hand some resolutions which I will take the liberty to offer to the House."[1010]

The resolutions offered by Marshall declared that:—

"The House of Representatives of the United States, having received intelligence of the death of their highly valued fellow-citizen,George Washington, General of the Armies of the United States, and sharing the universal grief this distressing event must produce,unanimously resolve:—

"1. That this House will wait on the President of the United States, in condolence of this national calamity.

"2. That the Speaker's chair be shrouded with black, and that the members and officers of the House wear mourning during the session.

"3. That a joint committee of both Houses be appointed to report measures suitable to the occasion, and expressive of the profound sorrow with which Congress is penetrated on the loss of a citizen, first in war, first in peace, and first in the hearts of his countrymen."[1011]

Thus it came about that the designation of Washington as "First in war, first in peace, and first in the hearts of his countrymen" was attributed to Marshall. But Marshall's colleague, Henry Lee, was the author of these words. Marshall's refusal to allow history to give him the credit for this famous description is characteristic. He might easily have accepted that honor. Indeed, he found it difficult to make the public believe that he did not originatethis celebrated phraseology. He presented the resolutions; they stand on the record in Marshall's name; and, for a long time, the world insisted on ascribing them to him.

In a last effort to make history place the laurels on General Lee, where they belong, Marshall, three years before his death, wrote the exact facts:—

"As the stage passed through Philadelphia," says Marshall, "some passenger mentioned to a friend he saw in the street the death of General Washington. The report flew to the hall of Congress, and I was asked to move an adjournment. I did so.

"General Lee was not at the time in the House. On receiving the intelligence which he did on the first arrival of the stage, he retired to his room and prepared the resolutions which were adopted with the intention of offering them himself.

"But the House of Representatives had voted on my motion, and it was expected by all that I on the next day announce the lamentable event and propose resolutions adapted to the occasion.

"General Lee immediately called on me and showed me his resolutions. He said it had now become improper for him to offer them, and wished me to take them. As I had not written anything myself and was pleased with his resolutions which I entirely approved, I told him I would offer them the next day when I should state to the House of Representatives the confirmation of the melancholy intelligence received the preceding day. I did so.

"You will see the fact stated in a note to the preface of the Life of Washington on p. [441] v. [2] and again in a note to the 5th vol. p. 765. Whenever the subject has been mentioned in my presence," Marshall adds in a postscript, "I have invariably stated that the resolution was drawn by General Lee and have referred to these notes in the Life of Washington."[1012]

During the first session Marshall was incessantly active, although his work was done with such ease that he gave to his colleagues the impression of indolence. Few questions came before the House on which he did not take the floor; and none, apparently, about which he did not freely speak his mind in private conversation. The interminable roll-calls of the first session show that Marshall failed to vote only six times.[1013]His name is prominent throughout the records of the session. For example, the Republicans moved to amend the army laws so that enlistments should not exempt non-commissioned officers and privates from imprisonment for debt. Marshall spoke against the motion, which was defeated.[1014]He was appointed chairman of a special committee to bring in a bill for removing military forces from election places and "preventing their interference in elections." Marshall drew this measure, reportedit to the House, where it passed, only to be defeated in the Senate.[1015]

Early in the session Marshall was appointed chairman of the committee to report upon the cession by Connecticut to the United States of that priceless domain known as the Western Reserve. He presented the committee report recommending the acceptance of the lands and introduced the bill setting out the terms upon which they could be taken over.[1016]After much debate, which Marshall led, Gallatin fighting by his side, the bill was passed by a heavy majority.[1017]

Marshall's vote against abrogating the power of the Governor of the Territory of the Mississippi to prorogue the Legislature;[1018]his vote for the resolution that the impertinence of a couple of young officers to John Randolph at the theater did not call "for the interposition of this House," on the ground of a breach of its privileges;[1019]his vote against that part of the Marine Corps Bill which provided that any officer, on the testimony of twowitnesses, should be cashiered and incapacitated forever from military service for refusing to help arrest any member of the service who, while on shore, offended against the person or property of any citizen,[1020]are fair examples of the level good sense with which Marshall invariably voted.

On the Marine Corps Bill a debate arose so suddenly and sharply that the reporter could not record it. Marshall's part in this encounter reveals his military bent of mind, the influence of his army experience, and his readiness in controversy, no less than his unemotional sanity and his disdain of popular favor if it could be secured only by sacrificing sound judgment. Marshall strenuously objected to subjecting the Marine Corps officers to trial by jury in the civil courts; he insisted that courts-martial were the only tribunals that could properly pass on their offenses. Thereupon, young John Randolph of Roanoke, whose pose at this particular time was extravagant hostility to everything military, promptly attacked him. The incident is thus described by one who witnessed the encounter "which was incidentally and unexpectedly started and as suddenly and warmly debated":—

"Your representative, Mr. Marshall, was the principal advocate forletting the power remain with courts martial and for withholding it from the courts of law. In the course of the debate there was some warmth and personality between him and Mr. Randolph, in consequence of the latter charging the former with adopting opinions, and using arguments, which went to sap the mode of trial by jury.

"Mr. Marshall, with leave, rose a third time, and exerted himself to repel and invalidate the deductions of Mr. Randolph, who also obtained permission, and defended the inference he had drawn, by stating that Mr. Marshall, in the affair of Robbins,[1021]had strenuously argued against the jurisdiction of the American courts, and had contended that it was altogether anExecutivebusiness; that in the present instance he strongly contended that the business ought not to be left with the civil tribunals, but that it ought to be transferred to military tribunals, and thus the trial by jury would be lessened and frittered away, and insensibly sapped, at one time by transferring the power to the Executive, and at another to the military departments; and in other ways, as occasions might present themselves. The debate happened so unexpectedly that the shorthand man did not take it down, although its manner, its matter, and its tendency, made it more deserving of preservation, than most that have taken place during the session."[1022]

Marshall's leadership in the fight of the Virginia Revolutionary officers for land grants from the National Government, strongly resisted by Gallatin and other Republican leaders, illustrates his unfailing support of his old comrades. Notwithstanding the Republican opposition, he was victorious by a vote of more than two to one.[1023]

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