FOOTNOTES:

Tim PickeringTim Pickering

The "great battle" which Marshall foresaw had been fought nearly eight weeks before his letter was written. Napoleon had been crushingly defeated at Leipzig in October, 1813, and the British, Prussian, and other armies which Great Britain had combined against him, were already invading France. When, later, the news of this arrived in America, it was hailed by the Federalists with extravagant rejoicings.[139]

Secession, if the war were continued, now became the purpose of the more determined Federalist leaders. It was hopeless to keep up the struggle, they said. The Administration had precipitated hostilities without reason or right, without conscience or sense.[140]The people never had favored this wretched conflict; and now the tyrannical Government, failing to secure volunteers, had resorted to conscription—an "infamous" expedient resorted to in brutal violation of the Constitution.[141]So came the HartfordConvention which the cool wisdom of George Cabot saved from proclaiming secession.[142]

Of the two pretenses for war against Great Britain, the Federalists alleged that one had been removed even before we declared war, and that only the false and shallow excuse of British impressment of American seamen remained. Madison and Monroe recognized this as the one great remaining issue, and an Administration pamphlet was published asserting the reason and justice of the American position. This position was that men of every country have a natural right to remove to another land and there become citizens or subjects, entitled to the protection of the government of the nation of their adoption. The British principle, on the contrary, was that British subjects could never thus expatriate themselves, and that, if they did so, the British Government could seize them wherever found, and by force compel them to serve the Empire in any manner the Government chose to direct.

Monroe's brother-in-law, George Hay, still the United States Attorney for the District of Virginia, was selected to write the exposition of the Americanview. It seems probable that his manuscript was carefully revised by Madison and Monroe, and perhaps by Jefferson.[143]Certainly Hay stated with singular precision the views of the great Republican triumvirate. The pamphlet was entitled "A Treatise on Expatriation." He began: "I hold in utter reprobation the idea that a man is bound by an obligation, permanent and unalterable, to the government of a country which he has abandoned and his allegiance to which he has solemnly adjured."[144]

Immediately John Lowell answered.[145]Nothing keener and more spirited ever came from the pen of that gifted man. "The presidential pamphleteer," as Lowell called Hay, ignored the law. The maxim, once a subject always a subject, was as true of America as of Britain. Had not Ellsworth, when Chief Justice, so decided in the famous case of Isaac Williams?[146]Yet Hay sneered at the opinion of that distinguished jurist.[147]

Pickering joyfully dispatched Lowell's brochure to Marshall, who lost not a moment in writing of his admiration. "I had yesterday the pleasure of receiving your letter of the 8th accompanying MrLowell's very masterly review of the treatise on expatriation. I have read it with great pleasure, & thank you very sincerely for this mark of your recollection.

"Could I have ever entertained doubts on the subject, this review would certainly have removed them. Mingled with much pungent raillery is a solidity of argument and an array of authority which in my judgement is entirely conclusive. But in truth it is a question upon which I never entertained a scintilla of doubt; and have never yet heard an argument which ought to excite a doubt in any sound and reflecting mind. It will be to every thinking American a most afflicting circumstance, should our government on a principle so completely rejected by the world proceed to the execution of unfortunate, of honorable, and of innocent men."[148]

Astonishing and repellent as these words now appear, they expressed the views of every Federalist lawyer in America. The doctrine of perpetual allegiance was indeed then held and practiced by every government except our own,[149]nor was it rejected by the United States until the Administration became Republican. Marshall, announcing the opinion of the Supreme Court in 1804, had held that an alien could take lands in New Jersey because he had lived in that State when, in 1776, the Legislature passed a law making all residents citizens.[150]Thus he had declared that an American citizen did not cease to besuch because he had become the subject of a foreign power. Four years later, in another opinion involving expatriation, he had stated the law to be that a British subject, born in England before 1775, could not take, by devise, lands in Maryland, the statute of that State forbidding aliens from thus acquiring property there.[151]In both these cases, however, Marshall refrained from expressly declaring in terms against the American doctrine.

Even as late as 1821 the Chief Justice undoubtedly retained his opinion that the right of expatriation did not exist,[152]although he did not say so in express terms. But in Marshall's letter on Lowell's pamphlet he flatly avows his belief in the principle of perpetual allegiance, any direct expression on which he so carefully avoided when deciding cases involving it.

Thus the record shows that John Marshall was as bitterly opposed to the War of 1812 as was Pickering or Otis or Lowell. So entirely had he become one of "the aristocracy of talents of reputation, & of property," as Plumer, in 1804, had so accurately styled the class of which he himself was then a member,[153]that Marshall looked upon all but one subject then before the people with the eyes of confirmed reaction. That subject was Nationalism. To that supreme cause he was devoted with all the passion of his deep and powerful nature; and in the service of that cause he was soon to do much more than he had already performed.

Our second war with Great Britain accomplished none of the tangible and immediate objects for which it was fought. The British refused to abandon "the right" of impressment; or to disclaim the British sovereignty of the oceans whenever they chose to assert it; or to pay a farthing for their spoliation of American commerce. On the other hand, the British did not secure one of their demands.[154]The peace treaty did little more than to end hostilities.

But the war achieved an inestimable good—it de-Europeanized America. It put an end to our thinking and feeling only in European terms and emotions. It developed the spirit of the new America, born since our political independence had been achieved, and now for the first time emancipated from the intellectual and spiritual sovereignty of the Old World. It had revealed to this purely American generation a consciousness of its own strength; it could exult in the fact that at last America had dared to fight.

The American Navy, ship for ship, officer for officer, man for man, had proved itself superior to the British Navy, the very name of which had hitherto been mentioned only in terror or admiration of its unconquerable might. In the end, raw and untrained American troops had beaten British regulars. American riflemen of the West and South hadoverwhelmed the flower of all the armies of Europe. An American frontier officer, Andrew Jackson, had easily outwitted some of Great Britain's ablest and most experienced professional generals. In short, on land and sea America had stood up to, had really beaten, the tremendous Power that had overthrown the mighty Napoleon.

Such were the feelings and thoughts of that Young America which had come into being since John Marshall had put aside his Revolutionary uniform and arms. And in terms very much like those of the foregoing paragraph the American people generally expressed their sentiments.

Moreover, the Embargo, the Non-Intercourse and Non-Importation Acts, the British blockades, the war itself, had revolutionized the country economically and socially. American manufacturing was firmly established. Land travel and land traffic grew to proportions never before imagined, never before desired. The people of distant sections became acquainted.

The eyes of all Americans, except those of the aged or ageing, were turned from across the Atlantic Ocean toward the boundless, the alluring West—their thoughts diverted from the commotions of Europe and the historic antagonism of foreign nations, to the economic conquest of a limitless and virgin empire and to the development of incalculable and untouched resources, all American and all their own.

The migration to the West, which had been increasing for years, now became almost a folk movement. The Eastern States were drained of theiryoung men and women. Some towns were almost depopulated.[155]And these hosts of settlers carried into wilderness and prairie a spirit and pride that had not been seen or felt in America since the time of the Revolution. But their high hopes were to be quickly turned into despair, their pride into ashes; for a condition was speedily to develop that would engulf them in disaster. It was this situation which was to call forth some of the greatest of Marshall's Constitutional opinions. This forbidding future, however, was foreseen by none of that vast throng of home-seekers crowding every route to the "Western Country," in the year of 1815. Only the rosiest dreams were theirs and the spirited consciousness that they were Americans, able to accomplish all things, even the impossible.

It was then a new world in which John Marshall found himself, when, in his sixtieth year, the war which he so abhorred came to an end. A state of things surrounded him little to his liking and yet soon to force from him the exercise of the noblest judicial statesmanship in American history. From the extreme independence of this new period, the intense and sudden Nationalism of the war, the ideas of local sovereignty rekindled by the New England Federalists at the dying fires that Jefferson and the Republicans had lighted in 1798, and from the play of conflicting interests came a reaction against Nationalism which it was Marshall's high mission to check and to turn into channels of National power, National safety, and National well-being.

FOOTNOTES:[1]"The navy of Britain is our shield." (Pickering:Open Letter[Feb. 16, 1808]to Governor James Sullivan, 8;infra, 5, 9-10, 25-26, 45-46.)[2]Diary and Letters of Gouverneur Morris: Morris,ii, 548.[3]Jefferson to D'Ivernois, Feb. 6, 1795,Works of Thomas Jefferson: Ford,viii, 165.[4]Jefferson to Short, Jan. 3, 1793,ib.vii, 203; same to Mason, Feb. 4, 1791,ib.vi, 185.[5]See vol.ii, 354, of this work.[6]Ib.133-39.[7]The Fairfax transaction.[8]The phrase used by the Federalists to designate the opponents of democracy.[9]See vol.ii, 24-27, 92-96, 106-07, 126-28, of this work.[10]Ames to Dwight, Oct. 31, 1803,Works of Fisher Ames: Ames,i, 330; and see Ames to Gore, Nov. 16, 1803,ib.332; also Ames to Quincy, Feb. 12, 1806,ib.360.[11]Rutledge to Otis, July 29, 1806, Morison:Life and Letters of Harrison Gray Otis,i, 282.[12]The student should examine the letters of Federalists collected in Henry Adams'sNew-England Federalism; those in theLife and Correspondence of Rufus King; in Lodge'sLife and Letters of George Cabot; in theWorks of Fisher Amesand in Morison'sOtis.[13]See Adams:History of the United States,iv, 29.[14]Once in a long while an impartial view was expressed: "I think myself sometimes in an Hospital of Lunaticks, when I hear some of our Politicians eulogizing Bonaparte because he humbles the English; & others worshipping the latter, under an Idea that they will shelter us, & take us under the Shadow of their Wings. They would join, rather, to deal us away like Cattle." (Peters to Pickering, Feb. 4, 1807, Pickering MSS. Mass. Hist. Soc.)[15]See Harrowby's Circular, Aug. 9, 1804,American State Papers, Foreign Relations,iii, 266.[16]See Hawkesbury's Instructions, Aug. 17, 1805,ib.[17]Fox to Monroe, April 8 and May 16, 1806,ib.267.[18]The Berlin Decree, Nov. 21, 1806,ib.290-91.[19]Orders in Council, Jan. 7 and Nov. 11, 1807,Am. State Papers, For. Rel.iii, 267-73; and see Channing:Jeffersonian System, 199.[20]Dec. 17, 1807,Am. State Papers, For. Rel.iii, 290.[21]Adams:U.S.v, 31.[22]"England's naval power stood at a height never reached before or since by that of any other nation. On every sea her navies rode, not only triumphant, but with none to dispute their sway." (Roosevelt:Naval War of 1812, 22.)[23]See Report, Secretary of State, July 6, 1812,Am. State Papers, For. Rel.iii, 583-85."These decrees and orders, taken together, want little of amounting to a declaration that every neutral vessel found on the high seas, whatsoever be her cargo, and whatsoever foreign port be that of her departure or destination, shall be deemed lawful prize." (Jefferson to Congress, Special Message, March 17, 1808,Works:Ford,xi, 20.)"The only mode by which either of them [the European belligerents] could further annoy the other ... was by inflicting ... the torments of starvation. This the contending parties sought to accomplish by putting an end to all trade with the other nation." (Channing:Jeff. System, 169.)[24]Theodore Roosevelt, who gave this matter very careful study, says that at least 20,000 American seamen were impressed. (Roosevelt, footnote to 42.)"Hundreds of American citizens had been taken by force from under the American flag, some of whom were already lying beneath the waters off Cape Trafalgar." (Adams:U. S.iii, 202.)See also Babcock:Rise of American Nationality, 76-77; and Jefferson to Crawford, Feb. 11, 1815,Works: Ford, XI, 451.[25]See Channing:Jeff. System, 184-94. The principal works on the War of 1812 are, of course, by Henry Adams and by Alfred Mahan. But these are very extended. The excellent treatments of that period are theJeffersonian System, by Edward Channing, andRise of American Nationality, by Kendric Charles Babcock, andLife and Letters of Harrison Gray Otis, by Samuel Eliot Morison. The latter work contains many valuable letters hitherto unpublished.[26]But see Jefferson to Madison, Aug. 27, 1805,Works: Ford,x, 172-73; same to Monroe, May 4, 1806, ib. 262-63; same to same, Oct. 26, 1806,ib.296-97; same to Lincoln, June 25, 1806,ib.272; also see Adams:U.S.iii, 75. While these letters speak of a temporary alliance with Great Britain, Jefferson makes it clear that they are merely diplomatic maneuvers, and that, if an arrangement was made, a heavy price must be paid for America's coöperation.Jefferson's letters, in general, display rancorous hostility to Great Britain. See, for example, Jefferson to Paine, Sept. 6, 1807,Works: Ford,x, 493; same to Leib, June 23, 1808,ib.xi, 34-35; same to Meigs, Sept. 18, 1813,ib.334-35; same to Monroe, Jan. 1, 1815,ib.443.[27]Jefferson to Dearborn, July 16, 1810,ib.144.[28]Annals, 9th Cong. 1st Sess. 1259-62; also see "An Act to Prohibit the Importation of Certain Goods, Wares, and Merchandise," chap. 29, 1806,Laws of the United States,iv, 36-38.[29]See vol.iii, 475-76, of this work.[30]Jefferson's Proclamation, July 2, 1807,Works: Ford,x, 434-47; andMessages and Papers of the Presidents:Richardson,i, 421-24.[31]"This country has never been in such a state of excitement since the battle of Lexington." (Jefferson to Bowdoin, July 10, 1807,Works: Ford,x, 454; same to De Nemours, July 14, 1807,ib.460.)For Jefferson's interpretation of Great Britain's larger motive for perpetrating the Chesapeake crime, see Jefferson to Paine, Sept. 6, 1807,ib.493.[32]Adams:U.S.iv, 38.[33]Lowell:Peace Without Dishonor—War Without Hope: by "A Yankee Farmer," 8. The author of this pamphlet was the son of one of the new Federal judges appointed by Adams under the Federalist Judiciary Act of 1801.[34]SeePeace Without Dishonor—War Without Hope, 39-40.[35]Giles to Monroe, March 4, 1807; Anderson:William Branch Giles—A Study in the Politics of Virginia, 1790-1830, 108.Thomas Ritchie, in the Richmond Enquirer, properly denounced the New England Federalist headquarters as a "hot-bed of treason." (Enquirer, Jan. 24 and April 4, 1809, as quoted by Ambler:Thomas Ritchie—A Study in Virginia Politics, 46.)[36]Adams:U.S.iv, 41-44, 54.[37]Jefferson to Leiper, Aug. 21, 1807,Works: Ford,x, 483-84.Jefferson tenaciously clung to his prejudice against Great Britain: "The object of England, long obvious, is to claim the ocean as her domain.... We believe no more in Bonaparte's fighting merely for the liberty of the seas, than in Great Britain's fighting for the liberties of mankind." (Jefferson to Maury, April 25, 1812,ib.xi, 240-41.) He never failed to accentuate his love for France and his hatred for Napoleon.[38]"During the present paroxysm of the insanity of Europe, we have thought it wisest to break off all intercourse with her." (Jefferson to Armstrong, May 2, 1808,ib.30.)[39]"Three alternatives alone are to be chosen from. 1. Embargo. 2. War. 3. Submission and tribute, &, wonderful to tell, the last will not want advocates." (Jefferson to Lincoln, Nov. 13, 1808,ib.74.)[40]See Act of December 22, 1807 (Annals, 10th Cong. 1st Sess. 2814-15); of January 9, 1808 (ib.2815-17); of March 12, 1808 (ib.2839-42); and of April 25, 1808 (ib.2870-74); Treasury Circulars of May 6 and May 11, 1808 (Embargo Laws, 19-20, 21-22); and Jefferson's letter "to the Governours of Orleans, Georgia, South Carolina, Massachusetts and New Hampshire," May 6, 1808 (ib.20-21).Joseph Hopkinson sarcastically wrote: "Bless the Embargo—thrice bless the Presidents distribution Proclamation, by which his minions are to judge of the appetites of his subjects, how much food they may reasonably consume, and who shall supply them ... whether under the Proclamation and Embargo System, a child may be lawfully born without a clearing out at the Custom House." (Hopkinson to Pickering, May 25, 1808, Pickering MSS. Mass. Hist. Soc.)[41]Professor Channing says that "the orders in council had been passed originally to give English ship-owners a chance to regain some of their lost business." (Channing:Jeff. System, 261.)[42]Indeed, Napoleon, as soon as he learned of the American Embargo laws, ordered the seizure of all American ships entering French ports because their captains or owners had disobeyed these American statutes and, therefore, surely were aiding the enemy. (Armstrong to Secretary of State, April 23, postscript of April 25, 1808,Am. State Papers, For. Rel.iii, 291.)[43]Morison:Otis,ii, 10-12; see also Channing:Jeff. System, 183.[44]Annals, 10th Cong. 2d Sess. 22.The intensity of the interest in the Embargo is illustrated by Giles's statement in his reply to Hillhouse that it "almost ... banish[ed] every other topic of conversation." (Ib.94.)[45]Four years earlier, Pickering had plotted the secession of New England and enlisted the support of the British Minister to accomplish it. (See vol.iii, chap.vii, of this work.) His wife was an Englishwoman, the daughter of an officer of the British Navy. (Pickering and Upham:Life of Timothy Pickering,i, 7; and see Pickering to his wife, Jan. 1, 1808,ib.iv, 121.) His nephew had been Consul-General at London under the Federalist Administrations and was at this time a merchant in that city. (Pickering to Rose, March 22, 1808,New-England Federalism:Adams, 370.) Pickering had been, and still was, carrying on with George Rose, recently British Minister to the United States, a correspondence all but treasonable. (Morison:Otis,ii, 6.)[46]Annals, 10th Cong. 2d Sess. 175, 177-78.[47]Annals, 10th Cong. 2d Sess. 193.[48]Ib.279-82.[49]Marshall to Pickering, Dec. 19, 1808, Pickering MSS. Mass. Hist. Soc.[50]See vol.ii, 509-14, of this work.[51]Morison:Otis,ii, 3-4.[52]"The tories of Boston openly threaten insurrection." (Jefferson to Dearborn, Aug. 9, 1808,Works: Ford,xi, 40.) And see Morison:Otis,ii, 6;Life and Correspondence of Rufus King: King,v, 88; also see Otis to Quincy, Dec. 15, 1808, Morison:Otis,ii, 115.[53]Monroe to Taylor, Jan. 9, 1809,Branch Historical Papers, June, 1908, 298.[54]Adams to Rush, July 25, 1808,Old Family Letters, 191-92.[55]Annals, 10th Cong. 2d Sess.iii, 1798-1804.[56]Morison:Otis,ii, 10. These resolutions denounced "'all those who shall assist in enforcing on others the arbitrary & unconstitutional provisions of this [Force Act]' ... as 'enemies to the Constitution of the United States and of this State, and hostile to the Liberties of the People.'" (Boston Town Records, 1796-1813, as quoted inib.; and see McMaster:History of the People of the United States,iii, 328.)[57]McMaster,iii, 329.[58]McMaster,iii, 329-30; and see Morison:Otis,ii, 4.The Federalist view was that the "Force Act" and other extreme portions of the Embargo laws were "so violently and palpably unconstitutional, as to render a reference to the judiciary absurd"; and that it was "the inherent right of the people to resist measures fundamentally inconsistent with the principles of just liberty and the Social compact." (Hare to Otis, Feb. 10, 1814, Morison:Otis,ii, 175.)[59]McMaster,iii, 331-32.[60]Morison:Otis,ii, 3, 8.[61]Hanson to Pickering, Jan. 17, 1810, N.E. Federalism: Adams, 382.[62]Humphrey Marshall to Pickering, March 17, 1809, Pickering MSS. Mass. Hist. Soc.[63]See vol.iii, chap.x, of this work.[64]5 Cranch, 133.[65]Ib.117.[66]5 Cranch, 135.[67]5 Cranch, 136, 141. (Italics the author's.)[68]The Legislature of Pennsylvania adopted a resolution, April 3, 1809, proposing an amendment to the National Constitution for the establishment of an "impartial tribunal" to decide upon controversies between States and the Nation. (State Documents on Federal Relations: Ames, 46-48.) In reply Virginia insisted that the Supreme Court, "selected from those ... who are most celebrated for virtue and legal learning," was the proper tribunal to decide such cases. (Ib.49-50.) This Nationalist position Virginia reversed within a decade in protest against Marshall's Nationalist opinions. Virginia's Nationalist resolution of 1809 was read by Pinkney in his argument of Cohensvs.Virginia. (Seeinfra, chap.vi.)[69]See Madison to Snyder, April 13, 1809,Annals, 11th Cong. 2d Sess. 2269; also McMaster,v, 403-06.[70]Annals, 10th Cong. 2d Sess. 1824-30.[71]Erskine to Smith, April 18 and 19, 1809,Am. State Papers, For. Rel.iii, 296.[72]Adams:U.S.v, 73-74; see also McMaster,iii, 337.[73]Adams:U.S.v, 87-89, 112.[74]Proclamation of Aug. 9, 1809,Am. State Papers, For. Rel.iii, 304.[75]Tyler:Letters and Times of the Tylers,i, 229. For an expression by Napoleon on this subject, see Adams:U.S.v, 137.[76]See vol.ii, 28-29, of this work.[77]"The appointment of Jackson and the instructions given to him might well have justified a declaration of war against Great Britain the moment they were known." (Channing:Jeff. System, 237.)[78]Circular, Nov. 13, 1809,Am. State Papers, For. Rel.iii, 323;Annals, 11th Cong. 2d Sess. 743.[79]Canning to Pinkney, Sept. 23, 1808,Am. State Papers, For. Rel.iii, 230-31.[80]Story to White, Jan. 17, 1809,Life and Letters of Joseph Story: Story,i, 193-94. There were two letters from Canning to Pinkney, both dated Sept. 23, 1808. Story probably refers to one printed in theColumbian Centinel, Boston, Jan. 11, 1809."It seems as if in New England the federalists were forgetful of all the motives for union & were ready to destroy the fabric which has been raised by the wisdom of our fathers. Have they altogether lost the memory of Washington's farewell address?... The riotous proceedings in some towns ... no doubt ... are occasioned by the instigation of men, who keep behind the curtain & yet govern the wires of the puppet shew." (Story to his brother, Jan. 3, 1809, Story MSS. Mass. Hist. Soc.)"In New England, and even in New York, there appears a spirit hostile to the existence of our own government." (Plumer to Gilman, Jan. 24, 1809, Plumer:Life of William Plumer, 368.)[81]Adams:U.S.v, 158.[82]Annals, 11th Cong. 2d Sess. 481.[83]Ib.943. The resolution was passed over the strenuous resistance of the Federalists.[84]Probably that of Madison, July 21, 1808,Annals, 10th Cong. 2d Sess. 1681.[85]Marshall to Quincy, April 23, 1810, Quincy:Life of Josiah Quincy, 204.[86]Tyler to Jefferson, May 12, 1810, Tyler:Tyler,i, 247; and see next chapter.[87]Adams:U.S.v, 212-14; and see Morison:Otis,ii, 18-19.[88]Turreau, then the French Minister at Washington, thus reported to his Government: "To-day not only is the separation of New England openly talked about, but the people of those five States wish for this separation, pronounce it, openly prepare it, will carry it out under British protection"; and he suggests that "perhaps the moment has come for forming a party in favor of France in the Central and Southern States, whenever those of the North, having given themselves a separate government under the support of Great Britain, may threaten the independence of the rest." (Turreau to Champagny, April 20, 1809, as quoted in Adams:U.S.v, 36.)[89]For account of Jackson's reception in Boston and the effects of it, see Adams:U.S.215-17, and Morison:Otis, 20-22.[90]On the other hand, Jefferson, out of his bottomless prejudice against Great Britain, drew venomous abuse of the whole British nation: "What is to restore order and safety on the ocean?" he wrote; "the death of George III? Not at all. He is only stupid;... his ministers ... ephemeral. But his nation is permanent, and it is that which is the tyrant of the ocean. The principle that force is right, is become the principle of the nation itself. They would not permit an honest minister, were accident to bring such an one into power, to relax their system of lawless piracy." (Jefferson to Rodney, Feb. 10, 1810,Works: Ford,xi, 135-36.)[91]Champagny, Duke de Cadore, to Armstrong, Aug. 5, 1810 (Am.State Papers, For. Rel.iii, 386-87), and Proclamation, Nov. 2, 1810 (ib.392); and see Adams:U.S.v, 303-04.[92]Adams:U.S.v, 346.[93]Marshall to Pickering, Feb. 22, 1811, Pickering MSS. Mass. Hist. Soc.[94]Annals, 11th Cong. 3d Sess. 525.Daniel Webster was also emphatically opposed to the admission of new States: "Put in a solemn, decided, and spirited Protest against making new States out of new Territories. Affirm, in direct terms, that New Hampshire has never agreed to favor political connexions of such intimate nature, with any people, out of the limits of the U.S. as they existed at the time of the compact." (Webster to his brother, June 4, 1813,Letters of Daniel Webster: Van Tyne, 37.)[95]Annals, 11th Cong. 3d Sess. 542.[96]Ib.1st and 2d Sess. 579-82.[97]Annals, 12th Cong. 1st Sess. 601; also see Adams:U.S.v, 189-90.[98]Adams:U.S.v, 316.[99]Richardson,i, 499-505;Am. State Papers, For. Rel.iii, 567-70.[100]Annals, 12th Cong. 1st Sess. 1637. The Federalists who voted for war were: Joseph Kent of Maryland, James Morgan of New Jersey, and William M. Richardson of Massachusetts.Professor Channing thus states the American grievances: "Inciting the Indians to rebellion, impressing American seamen and making them serve on British war-ships, closing the ports of Europe to American commerce, these were the counts in the indictment against the people and government of Great Britain." (Channing:Jeff. System, 260.) See alsoib.268, and Jefferson's brilliant statement of the causes of the war, Jefferson to Logan, Oct. 3, 1813,Works: Ford,xi, 338-39."The United States," says Henry Adams, "had a superfluity of only too good causes for war with Great Britain." (Adams:Life of Albert Gallatin, 445.) Adams emphasizes this: "The United States had the right to make war on England with or without notice, either for her past spoliations, her actual blockades, her Orders in Council other than blockades, her Rule of 1756, her impressments, or her attack on the 'Chesapeake,' not yet redressed,—possibly also for other reasons less notorious." (Adams:U.S.v, 339.) And see Roosevelt, chaps,iandii.[101]Annals, 12th Cong. 1st Sess. 1675-82.[102]SalemGazette, July 7, 1812, as quoted in Morison:Otis,i, 298.[103]Story to Williams, Aug. 24, 1812, Story,i, 229.[104]Pickering to Pennington, July 12, 1812,N.E. Federalism: Adams, 389.[105]Of course the National courts were attacked: "Attempts ... are made ... to break down the Judiciary of the United States through the newspapers, and mean and miserable insinuations are made to weaken the authority of its judgments." (Story to Williams, Aug. 3, 1813, Story,i, 247.) And again: "Conspirators, and traitors are enabled to carry on their purposes almost without check." (Same to same, May 27, 1813,ib.244.) Story was lamenting that the National courts had no common-law jurisdiction. Some months earlier he had implored Nathaniel Williams, Representative in Congress from Story's district, to "induce Congress to give the Judicial Courts of the United States power to punish all crimes ... against the Government.... Do not suffer conspiracies to destroy the Union." (Same to same, Oct. 8, 1812,ib.243.)Jefferson thought the people were loyal: "When the questions of separation and rebellion shall be nakedly proposed ... the Gores and the Pickerings will find their levees crowded with silk stocking gentry, but no yeomanry." (Jefferson to Gerry, June 11, 1812,Works: Ford,xi, 257.)[106]Stoddert to McHenry, July 15, 1812, Steiner:Life and Correspondence of James McHenry, 581-83.[107]"To the Citizens of the United States," in theSpirit of Seventy-Six, July 17, 1812.[108]Stoddert refers to this person as "Jo Davies." By some this has been thought to refer to Marshall's brother-in-law, "Jo" Daveiss of Kentucky. But the latter was killed in the Battle of Tippecanoe, November 7, 1811.While the identity of Stoddert's agent cannot be established with certainty, he probably was one John Davis of Salisbury, England, as described in the text. "Jo" was then used for John as much as for Joseph; and Davis was frequently spelled "Davies." A John or "Jo" Davis or Davies, an Englishman, was a very busy person in America during the first decade of the nineteenth century. (See Loshe:Early American Novel, 74-77.) Naturally he would have been against the War of 1812, and he was just the sort of person that an impracticable man like Stoddert would have chosen for such a mission.[109]Stoddert to McHenry, July 15, 1812, Steiner, 582.[110]See King,v, 266.[111]Adams:U.S.v, 375-78.[112]Smith:An Address to the People of the United States, 42-43.[113]Marshall to Smith, July 27, 1812, Dreer MSS. "American Lawyers," Pa. Hist. Soc.[114]Am. State Papers, For. Rel.iii, 603; and see Charming:U.S.iv, 449.[115]See vol.ii, 243-44, 245-47, of this work.[116]Marshall to Smith, July 27, 1812, Dreer MSS. "American Lawyers," Pa. Hist. Soc.A single quotation from the letters of Southern Federalists will show how accurately Marshall interpreted Federalist feeling during the War of 1812: "Heaven grant that ... our own Country may not be found ultimately, a solitary friend of this great Robber of Nations." (Tallmadge to McHenry, May 30, 1813, Steiner, 598.) The war had been in progress more than ten months when these words were written.[117]Story to Williams, Oct. 8, 1812, Story,i, 243.[118]Marshall to Monroe, June 25, 1812, Monroe MSS. Lib. Cong.[119]Marshall, however, was a member of the "Vigilance Committee" of Richmond, and took an important part in its activities. (Virginia Magazine of History and Biography,vii, 230-31.)[120]Report of the Commissioners appointed to view Certain Rivers within the Commonwealth of Virginia, 5.[121]A practicable route for travel and transportation between Virginia and the regions across the mountains had been a favorite project of Washington. The Potomac and James River Company, of which Marshall when a young lawyer had become a stockholder (vol.i, 218, of this work), was organized partly in furtherance of this project. The idea had remained active in the minds of public men in Virginia and was, perhaps, the one subject upon which they substantially agreed.[122]Much of the course selected by Marshall was adopted in the building of the Chesapeake and Ohio Railway. In 1869, Collis P. Huntington made a trip of investigation over part of Marshall's route. (Nelson:Address—The Chesapeake and Ohio Railway, 15.)[123]Report of the Commissioners appointed to view Certain Rivers within the Commonwealth of Virginia, 38-39.[124]Niles:Weekly Register,ii, 418.[125]Lowell:Mr. Madison's War: by "A New England Farmer."A still better illustration of Federalist hostility to the war and the Government is found in a letter of Ezekiel Webster to his brother Daniel: "Let gamblers be made to contribute to the support of this war, which was declared by men of no better principles than themselves." (Ezekiel Webster to Daniel Webster, Oct. 29, 1814, Van Tyne, 53.) Webster here refers to a war tax on playing-cards.[126]Harper to Lynn, Sept. 25, 1812, Steiner, 584.[127]See McMaster,iv, 199-200.[128]Morison:Otis,i, 399.[129]Pickering to Pennington, July 22, 1812,N.E. Federalism: Adams, 389.[130]The vote of Pennsylvania, with those cast for Clinton, would have elected Marshall.[131]Babcock, 157; and see Dewey:Financial History of the United States, 133.[132]For an excellent statement of the conduct of the Federalists at this time see Morison:Otis,ii, 53-66. "The militia of Massachusetts, seventy thousand in enrolment, well-drilled, and well-equipped, was definitely withdrawn from the service of the United States in September, 1814." (Babcock, 155.) Connecticut did the same thing. (Ib.156.)[133]Annals, 13th Cong. 1st Sess. 302.[134]See McMaster,iv, 213-14.[135]Annals, 13th Cong. 1st Sess. 302[136]Am. State Papers, For. Rel.iii, 609-12.[137]The Republican victory was caused by the violent British partisanship of the Federalist leaders. In spite of the distress the people suffered from the Embargo, they could not, for the moment, tolerate Federalist opposition to their own country. (See Adams:U.S.v, 215.)[138]Marshall to Pickering, Dec. 11, 1813, Pickering MSS. Mass. Hist Soc.[139]Morison:Otis,ii, 54-56.[140]"Curse This Government!I would march at 6 days notice for Washington ... and I would swear upon thealtarnever to return till Madison was buried under the ruins of the capitol." (Herbert to Webster, April 20, 1813, Van Tyne, 27.)[141]The Federalists frantically opposed conscription. Daniel Webster, especially, denounced it. "Is this [conscription] ... consistent with the character of a free Government?... No, Sir.... The Constitution is libelled, foully libelled. The people of this country have not established ... such a fabric of despotism...."Where is it written in the Constitution ... that you may take children from their parents ... & compel them to fight the battles of any war, in which the folly or the wickedness of Government may engage it?... Such an abominable doctrine has no foundation in the Constitution."Conscription, Webster said, was a gambling device to throw the dice for blood; and it was a "horrible lottery." "May God, in his compassion, shield me from ... the enormity of this guilt." (See Webster's speech on the Conscription Bill delivered in the House of Representatives, December 9, 1814, Van Tyne, 56-68; see also Curtis:Life of Daniel Webster,i, 138.)Webster had foretold what he meant to do: "Of course we shall oppose such usurpation." (Webster to his brother, Oct. 30, 1814, Van Tyne, 54.) Again: "The conscription has not come up—if it does it will cause a storm such as was never witnessed here" [in Washington]. (Same to same, Nov. 29, 1814,ib.55.)[142]See Morison:Otis,ii, 78-199. Pickering feared that Cabot's moderation would prevent the Hartford Convention from taking extreme measures against the Government. (See Pickering to Lowell, Nov. 7, 1814,N.E. Federalism: Adams, 406.)[143]Some sentences are paraphrases of expressions by Jefferson on the same subject. For example: "I hold the right of expatriation to be inherent in every man by the laws of nature, and incapable of being rightfully taken from him even by the united will of every other person in the nation." (Jefferson to Gallatin, June 26, 1806,Works: Ford,x, 273.) Again: "Our particular and separate grievance is only the impressment of our citizens. We must sacrifice the last dollar and drop of blood to rid us of that badge of slavery." (Jefferson to Crawford, Feb. 11, 1815,ib.xi, 450-51.) This letter was written at Monticello the very day that the news of peace reached Washington.[144]Hay:A Treatise on Expatriation, 24.[145]Lowell:Review of 'A Treatise on Expatriation': by "A Massachusetts Lawyer."[146]See vol.iii, chap.i, of this work.[147]SeeReview of 'A Treatise on Expatriation,' 6.[148]Marshall to Pickering, April 11, 1814, Pickering MSS. Mass. Hist. Soc.[149]See Channing:Jeff. System, 170-71.[150]M'Ilvainevs.Coxe's Lessee, 4 Cranch, 209.[151]Dawson's Lesseevs.Godfrey, 4 Cranch, 321.[152]Case of the Santissima Trinidadet al., 1 Brockenbrough, 478-87; and see 7 Wheaton, 283.[153]Plumer to Livermore, March 4, 1804, Plumer MSS. Lib. Cong.[154]For example, the British "right" of impressment must be formally and plainly acknowledged in the treaty; an Indian dominion was to be established, and the Indian tribes were to be made parties to the settlements; the free navigation of the Mississippi was to be guaranteed to British vessels; the right of Americans to fish in Canadian waters was to be ended. Demands far more extreme were made by the British press and public. (See McMaster,iv, 260-74; and see especially Morison:Otis,ii, 171.)[155]McMaster,iv, 383-88.

[1]"The navy of Britain is our shield." (Pickering:Open Letter[Feb. 16, 1808]to Governor James Sullivan, 8;infra, 5, 9-10, 25-26, 45-46.)

[2]Diary and Letters of Gouverneur Morris: Morris,ii, 548.

[3]Jefferson to D'Ivernois, Feb. 6, 1795,Works of Thomas Jefferson: Ford,viii, 165.

[4]Jefferson to Short, Jan. 3, 1793,ib.vii, 203; same to Mason, Feb. 4, 1791,ib.vi, 185.

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

[6]Ib.133-39.

[7]The Fairfax transaction.

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

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

[10]Ames to Dwight, Oct. 31, 1803,Works of Fisher Ames: Ames,i, 330; and see Ames to Gore, Nov. 16, 1803,ib.332; also Ames to Quincy, Feb. 12, 1806,ib.360.

[11]Rutledge to Otis, July 29, 1806, Morison:Life and Letters of Harrison Gray Otis,i, 282.

[12]The student should examine the letters of Federalists collected in Henry Adams'sNew-England Federalism; those in theLife and Correspondence of Rufus King; in Lodge'sLife and Letters of George Cabot; in theWorks of Fisher Amesand in Morison'sOtis.

[13]See Adams:History of the United States,iv, 29.

[14]Once in a long while an impartial view was expressed: "I think myself sometimes in an Hospital of Lunaticks, when I hear some of our Politicians eulogizing Bonaparte because he humbles the English; & others worshipping the latter, under an Idea that they will shelter us, & take us under the Shadow of their Wings. They would join, rather, to deal us away like Cattle." (Peters to Pickering, Feb. 4, 1807, Pickering MSS. Mass. Hist. Soc.)

[15]See Harrowby's Circular, Aug. 9, 1804,American State Papers, Foreign Relations,iii, 266.

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

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

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

[19]Orders in Council, Jan. 7 and Nov. 11, 1807,Am. State Papers, For. Rel.iii, 267-73; and see Channing:Jeffersonian System, 199.

[20]Dec. 17, 1807,Am. State Papers, For. Rel.iii, 290.

[21]Adams:U.S.v, 31.

[22]"England's naval power stood at a height never reached before or since by that of any other nation. On every sea her navies rode, not only triumphant, but with none to dispute their sway." (Roosevelt:Naval War of 1812, 22.)

[23]See Report, Secretary of State, July 6, 1812,Am. State Papers, For. Rel.iii, 583-85."These decrees and orders, taken together, want little of amounting to a declaration that every neutral vessel found on the high seas, whatsoever be her cargo, and whatsoever foreign port be that of her departure or destination, shall be deemed lawful prize." (Jefferson to Congress, Special Message, March 17, 1808,Works:Ford,xi, 20.)"The only mode by which either of them [the European belligerents] could further annoy the other ... was by inflicting ... the torments of starvation. This the contending parties sought to accomplish by putting an end to all trade with the other nation." (Channing:Jeff. System, 169.)

[23]See Report, Secretary of State, July 6, 1812,Am. State Papers, For. Rel.iii, 583-85.

"These decrees and orders, taken together, want little of amounting to a declaration that every neutral vessel found on the high seas, whatsoever be her cargo, and whatsoever foreign port be that of her departure or destination, shall be deemed lawful prize." (Jefferson to Congress, Special Message, March 17, 1808,Works:Ford,xi, 20.)

"The only mode by which either of them [the European belligerents] could further annoy the other ... was by inflicting ... the torments of starvation. This the contending parties sought to accomplish by putting an end to all trade with the other nation." (Channing:Jeff. System, 169.)

[24]Theodore Roosevelt, who gave this matter very careful study, says that at least 20,000 American seamen were impressed. (Roosevelt, footnote to 42.)"Hundreds of American citizens had been taken by force from under the American flag, some of whom were already lying beneath the waters off Cape Trafalgar." (Adams:U. S.iii, 202.)See also Babcock:Rise of American Nationality, 76-77; and Jefferson to Crawford, Feb. 11, 1815,Works: Ford, XI, 451.

[24]Theodore Roosevelt, who gave this matter very careful study, says that at least 20,000 American seamen were impressed. (Roosevelt, footnote to 42.)

"Hundreds of American citizens had been taken by force from under the American flag, some of whom were already lying beneath the waters off Cape Trafalgar." (Adams:U. S.iii, 202.)

See also Babcock:Rise of American Nationality, 76-77; and Jefferson to Crawford, Feb. 11, 1815,Works: Ford, XI, 451.

[25]See Channing:Jeff. System, 184-94. The principal works on the War of 1812 are, of course, by Henry Adams and by Alfred Mahan. But these are very extended. The excellent treatments of that period are theJeffersonian System, by Edward Channing, andRise of American Nationality, by Kendric Charles Babcock, andLife and Letters of Harrison Gray Otis, by Samuel Eliot Morison. The latter work contains many valuable letters hitherto unpublished.

[26]But see Jefferson to Madison, Aug. 27, 1805,Works: Ford,x, 172-73; same to Monroe, May 4, 1806, ib. 262-63; same to same, Oct. 26, 1806,ib.296-97; same to Lincoln, June 25, 1806,ib.272; also see Adams:U.S.iii, 75. While these letters speak of a temporary alliance with Great Britain, Jefferson makes it clear that they are merely diplomatic maneuvers, and that, if an arrangement was made, a heavy price must be paid for America's coöperation.Jefferson's letters, in general, display rancorous hostility to Great Britain. See, for example, Jefferson to Paine, Sept. 6, 1807,Works: Ford,x, 493; same to Leib, June 23, 1808,ib.xi, 34-35; same to Meigs, Sept. 18, 1813,ib.334-35; same to Monroe, Jan. 1, 1815,ib.443.

Jefferson's letters, in general, display rancorous hostility to Great Britain. See, for example, Jefferson to Paine, Sept. 6, 1807,Works: Ford,x, 493; same to Leib, June 23, 1808,ib.xi, 34-35; same to Meigs, Sept. 18, 1813,ib.334-35; same to Monroe, Jan. 1, 1815,ib.443.

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

[28]Annals, 9th Cong. 1st Sess. 1259-62; also see "An Act to Prohibit the Importation of Certain Goods, Wares, and Merchandise," chap. 29, 1806,Laws of the United States,iv, 36-38.

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

[30]Jefferson's Proclamation, July 2, 1807,Works: Ford,x, 434-47; andMessages and Papers of the Presidents:Richardson,i, 421-24.

[31]"This country has never been in such a state of excitement since the battle of Lexington." (Jefferson to Bowdoin, July 10, 1807,Works: Ford,x, 454; same to De Nemours, July 14, 1807,ib.460.)For Jefferson's interpretation of Great Britain's larger motive for perpetrating the Chesapeake crime, see Jefferson to Paine, Sept. 6, 1807,ib.493.

[31]"This country has never been in such a state of excitement since the battle of Lexington." (Jefferson to Bowdoin, July 10, 1807,Works: Ford,x, 454; same to De Nemours, July 14, 1807,ib.460.)

For Jefferson's interpretation of Great Britain's larger motive for perpetrating the Chesapeake crime, see Jefferson to Paine, Sept. 6, 1807,ib.493.

[32]Adams:U.S.iv, 38.

[33]Lowell:Peace Without Dishonor—War Without Hope: by "A Yankee Farmer," 8. The author of this pamphlet was the son of one of the new Federal judges appointed by Adams under the Federalist Judiciary Act of 1801.

[34]SeePeace Without Dishonor—War Without Hope, 39-40.

[35]Giles to Monroe, March 4, 1807; Anderson:William Branch Giles—A Study in the Politics of Virginia, 1790-1830, 108.Thomas Ritchie, in the Richmond Enquirer, properly denounced the New England Federalist headquarters as a "hot-bed of treason." (Enquirer, Jan. 24 and April 4, 1809, as quoted by Ambler:Thomas Ritchie—A Study in Virginia Politics, 46.)

[35]Giles to Monroe, March 4, 1807; Anderson:William Branch Giles—A Study in the Politics of Virginia, 1790-1830, 108.

Thomas Ritchie, in the Richmond Enquirer, properly denounced the New England Federalist headquarters as a "hot-bed of treason." (Enquirer, Jan. 24 and April 4, 1809, as quoted by Ambler:Thomas Ritchie—A Study in Virginia Politics, 46.)

[36]Adams:U.S.iv, 41-44, 54.

[37]Jefferson to Leiper, Aug. 21, 1807,Works: Ford,x, 483-84.Jefferson tenaciously clung to his prejudice against Great Britain: "The object of England, long obvious, is to claim the ocean as her domain.... We believe no more in Bonaparte's fighting merely for the liberty of the seas, than in Great Britain's fighting for the liberties of mankind." (Jefferson to Maury, April 25, 1812,ib.xi, 240-41.) He never failed to accentuate his love for France and his hatred for Napoleon.

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

Jefferson tenaciously clung to his prejudice against Great Britain: "The object of England, long obvious, is to claim the ocean as her domain.... We believe no more in Bonaparte's fighting merely for the liberty of the seas, than in Great Britain's fighting for the liberties of mankind." (Jefferson to Maury, April 25, 1812,ib.xi, 240-41.) He never failed to accentuate his love for France and his hatred for Napoleon.

[38]"During the present paroxysm of the insanity of Europe, we have thought it wisest to break off all intercourse with her." (Jefferson to Armstrong, May 2, 1808,ib.30.)

[39]"Three alternatives alone are to be chosen from. 1. Embargo. 2. War. 3. Submission and tribute, &, wonderful to tell, the last will not want advocates." (Jefferson to Lincoln, Nov. 13, 1808,ib.74.)

[40]See Act of December 22, 1807 (Annals, 10th Cong. 1st Sess. 2814-15); of January 9, 1808 (ib.2815-17); of March 12, 1808 (ib.2839-42); and of April 25, 1808 (ib.2870-74); Treasury Circulars of May 6 and May 11, 1808 (Embargo Laws, 19-20, 21-22); and Jefferson's letter "to the Governours of Orleans, Georgia, South Carolina, Massachusetts and New Hampshire," May 6, 1808 (ib.20-21).Joseph Hopkinson sarcastically wrote: "Bless the Embargo—thrice bless the Presidents distribution Proclamation, by which his minions are to judge of the appetites of his subjects, how much food they may reasonably consume, and who shall supply them ... whether under the Proclamation and Embargo System, a child may be lawfully born without a clearing out at the Custom House." (Hopkinson to Pickering, May 25, 1808, Pickering MSS. Mass. Hist. Soc.)

Joseph Hopkinson sarcastically wrote: "Bless the Embargo—thrice bless the Presidents distribution Proclamation, by which his minions are to judge of the appetites of his subjects, how much food they may reasonably consume, and who shall supply them ... whether under the Proclamation and Embargo System, a child may be lawfully born without a clearing out at the Custom House." (Hopkinson to Pickering, May 25, 1808, Pickering MSS. Mass. Hist. Soc.)

[41]Professor Channing says that "the orders in council had been passed originally to give English ship-owners a chance to regain some of their lost business." (Channing:Jeff. System, 261.)

[42]Indeed, Napoleon, as soon as he learned of the American Embargo laws, ordered the seizure of all American ships entering French ports because their captains or owners had disobeyed these American statutes and, therefore, surely were aiding the enemy. (Armstrong to Secretary of State, April 23, postscript of April 25, 1808,Am. State Papers, For. Rel.iii, 291.)

[43]Morison:Otis,ii, 10-12; see also Channing:Jeff. System, 183.

[44]Annals, 10th Cong. 2d Sess. 22.The intensity of the interest in the Embargo is illustrated by Giles's statement in his reply to Hillhouse that it "almost ... banish[ed] every other topic of conversation." (Ib.94.)

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

The intensity of the interest in the Embargo is illustrated by Giles's statement in his reply to Hillhouse that it "almost ... banish[ed] every other topic of conversation." (Ib.94.)

[45]Four years earlier, Pickering had plotted the secession of New England and enlisted the support of the British Minister to accomplish it. (See vol.iii, chap.vii, of this work.) His wife was an Englishwoman, the daughter of an officer of the British Navy. (Pickering and Upham:Life of Timothy Pickering,i, 7; and see Pickering to his wife, Jan. 1, 1808,ib.iv, 121.) His nephew had been Consul-General at London under the Federalist Administrations and was at this time a merchant in that city. (Pickering to Rose, March 22, 1808,New-England Federalism:Adams, 370.) Pickering had been, and still was, carrying on with George Rose, recently British Minister to the United States, a correspondence all but treasonable. (Morison:Otis,ii, 6.)

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

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

[48]Ib.279-82.

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

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

[51]Morison:Otis,ii, 3-4.

[52]"The tories of Boston openly threaten insurrection." (Jefferson to Dearborn, Aug. 9, 1808,Works: Ford,xi, 40.) And see Morison:Otis,ii, 6;Life and Correspondence of Rufus King: King,v, 88; also see Otis to Quincy, Dec. 15, 1808, Morison:Otis,ii, 115.

[53]Monroe to Taylor, Jan. 9, 1809,Branch Historical Papers, June, 1908, 298.

[54]Adams to Rush, July 25, 1808,Old Family Letters, 191-92.

[55]Annals, 10th Cong. 2d Sess.iii, 1798-1804.

[56]Morison:Otis,ii, 10. These resolutions denounced "'all those who shall assist in enforcing on others the arbitrary & unconstitutional provisions of this [Force Act]' ... as 'enemies to the Constitution of the United States and of this State, and hostile to the Liberties of the People.'" (Boston Town Records, 1796-1813, as quoted inib.; and see McMaster:History of the People of the United States,iii, 328.)

[57]McMaster,iii, 329.

[58]McMaster,iii, 329-30; and see Morison:Otis,ii, 4.The Federalist view was that the "Force Act" and other extreme portions of the Embargo laws were "so violently and palpably unconstitutional, as to render a reference to the judiciary absurd"; and that it was "the inherent right of the people to resist measures fundamentally inconsistent with the principles of just liberty and the Social compact." (Hare to Otis, Feb. 10, 1814, Morison:Otis,ii, 175.)

[58]McMaster,iii, 329-30; and see Morison:Otis,ii, 4.

The Federalist view was that the "Force Act" and other extreme portions of the Embargo laws were "so violently and palpably unconstitutional, as to render a reference to the judiciary absurd"; and that it was "the inherent right of the people to resist measures fundamentally inconsistent with the principles of just liberty and the Social compact." (Hare to Otis, Feb. 10, 1814, Morison:Otis,ii, 175.)

[59]McMaster,iii, 331-32.

[60]Morison:Otis,ii, 3, 8.

[61]Hanson to Pickering, Jan. 17, 1810, N.E. Federalism: Adams, 382.

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

[63]See vol.iii, chap.x, of this work.

[64]5 Cranch, 133.

[65]Ib.117.

[66]5 Cranch, 135.

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

[68]The Legislature of Pennsylvania adopted a resolution, April 3, 1809, proposing an amendment to the National Constitution for the establishment of an "impartial tribunal" to decide upon controversies between States and the Nation. (State Documents on Federal Relations: Ames, 46-48.) In reply Virginia insisted that the Supreme Court, "selected from those ... who are most celebrated for virtue and legal learning," was the proper tribunal to decide such cases. (Ib.49-50.) This Nationalist position Virginia reversed within a decade in protest against Marshall's Nationalist opinions. Virginia's Nationalist resolution of 1809 was read by Pinkney in his argument of Cohensvs.Virginia. (Seeinfra, chap.vi.)

[69]See Madison to Snyder, April 13, 1809,Annals, 11th Cong. 2d Sess. 2269; also McMaster,v, 403-06.

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

[71]Erskine to Smith, April 18 and 19, 1809,Am. State Papers, For. Rel.iii, 296.

[72]Adams:U.S.v, 73-74; see also McMaster,iii, 337.

[73]Adams:U.S.v, 87-89, 112.

[74]Proclamation of Aug. 9, 1809,Am. State Papers, For. Rel.iii, 304.

[75]Tyler:Letters and Times of the Tylers,i, 229. For an expression by Napoleon on this subject, see Adams:U.S.v, 137.

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

[77]"The appointment of Jackson and the instructions given to him might well have justified a declaration of war against Great Britain the moment they were known." (Channing:Jeff. System, 237.)

[78]Circular, Nov. 13, 1809,Am. State Papers, For. Rel.iii, 323;Annals, 11th Cong. 2d Sess. 743.

[79]Canning to Pinkney, Sept. 23, 1808,Am. State Papers, For. Rel.iii, 230-31.

[80]Story to White, Jan. 17, 1809,Life and Letters of Joseph Story: Story,i, 193-94. There were two letters from Canning to Pinkney, both dated Sept. 23, 1808. Story probably refers to one printed in theColumbian Centinel, Boston, Jan. 11, 1809."It seems as if in New England the federalists were forgetful of all the motives for union & were ready to destroy the fabric which has been raised by the wisdom of our fathers. Have they altogether lost the memory of Washington's farewell address?... The riotous proceedings in some towns ... no doubt ... are occasioned by the instigation of men, who keep behind the curtain & yet govern the wires of the puppet shew." (Story to his brother, Jan. 3, 1809, Story MSS. Mass. Hist. Soc.)"In New England, and even in New York, there appears a spirit hostile to the existence of our own government." (Plumer to Gilman, Jan. 24, 1809, Plumer:Life of William Plumer, 368.)

"It seems as if in New England the federalists were forgetful of all the motives for union & were ready to destroy the fabric which has been raised by the wisdom of our fathers. Have they altogether lost the memory of Washington's farewell address?... The riotous proceedings in some towns ... no doubt ... are occasioned by the instigation of men, who keep behind the curtain & yet govern the wires of the puppet shew." (Story to his brother, Jan. 3, 1809, Story MSS. Mass. Hist. Soc.)

"In New England, and even in New York, there appears a spirit hostile to the existence of our own government." (Plumer to Gilman, Jan. 24, 1809, Plumer:Life of William Plumer, 368.)

[81]Adams:U.S.v, 158.

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

[83]Ib.943. The resolution was passed over the strenuous resistance of the Federalists.

[84]Probably that of Madison, July 21, 1808,Annals, 10th Cong. 2d Sess. 1681.

[85]Marshall to Quincy, April 23, 1810, Quincy:Life of Josiah Quincy, 204.

[86]Tyler to Jefferson, May 12, 1810, Tyler:Tyler,i, 247; and see next chapter.

[87]Adams:U.S.v, 212-14; and see Morison:Otis,ii, 18-19.

[88]Turreau, then the French Minister at Washington, thus reported to his Government: "To-day not only is the separation of New England openly talked about, but the people of those five States wish for this separation, pronounce it, openly prepare it, will carry it out under British protection"; and he suggests that "perhaps the moment has come for forming a party in favor of France in the Central and Southern States, whenever those of the North, having given themselves a separate government under the support of Great Britain, may threaten the independence of the rest." (Turreau to Champagny, April 20, 1809, as quoted in Adams:U.S.v, 36.)

[89]For account of Jackson's reception in Boston and the effects of it, see Adams:U.S.215-17, and Morison:Otis, 20-22.

[90]On the other hand, Jefferson, out of his bottomless prejudice against Great Britain, drew venomous abuse of the whole British nation: "What is to restore order and safety on the ocean?" he wrote; "the death of George III? Not at all. He is only stupid;... his ministers ... ephemeral. But his nation is permanent, and it is that which is the tyrant of the ocean. The principle that force is right, is become the principle of the nation itself. They would not permit an honest minister, were accident to bring such an one into power, to relax their system of lawless piracy." (Jefferson to Rodney, Feb. 10, 1810,Works: Ford,xi, 135-36.)

[91]Champagny, Duke de Cadore, to Armstrong, Aug. 5, 1810 (Am.State Papers, For. Rel.iii, 386-87), and Proclamation, Nov. 2, 1810 (ib.392); and see Adams:U.S.v, 303-04.

[92]Adams:U.S.v, 346.

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

[94]Annals, 11th Cong. 3d Sess. 525.Daniel Webster was also emphatically opposed to the admission of new States: "Put in a solemn, decided, and spirited Protest against making new States out of new Territories. Affirm, in direct terms, that New Hampshire has never agreed to favor political connexions of such intimate nature, with any people, out of the limits of the U.S. as they existed at the time of the compact." (Webster to his brother, June 4, 1813,Letters of Daniel Webster: Van Tyne, 37.)

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

Daniel Webster was also emphatically opposed to the admission of new States: "Put in a solemn, decided, and spirited Protest against making new States out of new Territories. Affirm, in direct terms, that New Hampshire has never agreed to favor political connexions of such intimate nature, with any people, out of the limits of the U.S. as they existed at the time of the compact." (Webster to his brother, June 4, 1813,Letters of Daniel Webster: Van Tyne, 37.)

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

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

[97]Annals, 12th Cong. 1st Sess. 601; also see Adams:U.S.v, 189-90.

[98]Adams:U.S.v, 316.

[99]Richardson,i, 499-505;Am. State Papers, For. Rel.iii, 567-70.

[100]Annals, 12th Cong. 1st Sess. 1637. The Federalists who voted for war were: Joseph Kent of Maryland, James Morgan of New Jersey, and William M. Richardson of Massachusetts.Professor Channing thus states the American grievances: "Inciting the Indians to rebellion, impressing American seamen and making them serve on British war-ships, closing the ports of Europe to American commerce, these were the counts in the indictment against the people and government of Great Britain." (Channing:Jeff. System, 260.) See alsoib.268, and Jefferson's brilliant statement of the causes of the war, Jefferson to Logan, Oct. 3, 1813,Works: Ford,xi, 338-39."The United States," says Henry Adams, "had a superfluity of only too good causes for war with Great Britain." (Adams:Life of Albert Gallatin, 445.) Adams emphasizes this: "The United States had the right to make war on England with or without notice, either for her past spoliations, her actual blockades, her Orders in Council other than blockades, her Rule of 1756, her impressments, or her attack on the 'Chesapeake,' not yet redressed,—possibly also for other reasons less notorious." (Adams:U.S.v, 339.) And see Roosevelt, chaps,iandii.

[100]Annals, 12th Cong. 1st Sess. 1637. The Federalists who voted for war were: Joseph Kent of Maryland, James Morgan of New Jersey, and William M. Richardson of Massachusetts.

Professor Channing thus states the American grievances: "Inciting the Indians to rebellion, impressing American seamen and making them serve on British war-ships, closing the ports of Europe to American commerce, these were the counts in the indictment against the people and government of Great Britain." (Channing:Jeff. System, 260.) See alsoib.268, and Jefferson's brilliant statement of the causes of the war, Jefferson to Logan, Oct. 3, 1813,Works: Ford,xi, 338-39.

"The United States," says Henry Adams, "had a superfluity of only too good causes for war with Great Britain." (Adams:Life of Albert Gallatin, 445.) Adams emphasizes this: "The United States had the right to make war on England with or without notice, either for her past spoliations, her actual blockades, her Orders in Council other than blockades, her Rule of 1756, her impressments, or her attack on the 'Chesapeake,' not yet redressed,—possibly also for other reasons less notorious." (Adams:U.S.v, 339.) And see Roosevelt, chaps,iandii.

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

[102]SalemGazette, July 7, 1812, as quoted in Morison:Otis,i, 298.

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

[104]Pickering to Pennington, July 12, 1812,N.E. Federalism: Adams, 389.

[105]Of course the National courts were attacked: "Attempts ... are made ... to break down the Judiciary of the United States through the newspapers, and mean and miserable insinuations are made to weaken the authority of its judgments." (Story to Williams, Aug. 3, 1813, Story,i, 247.) And again: "Conspirators, and traitors are enabled to carry on their purposes almost without check." (Same to same, May 27, 1813,ib.244.) Story was lamenting that the National courts had no common-law jurisdiction. Some months earlier he had implored Nathaniel Williams, Representative in Congress from Story's district, to "induce Congress to give the Judicial Courts of the United States power to punish all crimes ... against the Government.... Do not suffer conspiracies to destroy the Union." (Same to same, Oct. 8, 1812,ib.243.)Jefferson thought the people were loyal: "When the questions of separation and rebellion shall be nakedly proposed ... the Gores and the Pickerings will find their levees crowded with silk stocking gentry, but no yeomanry." (Jefferson to Gerry, June 11, 1812,Works: Ford,xi, 257.)

Jefferson thought the people were loyal: "When the questions of separation and rebellion shall be nakedly proposed ... the Gores and the Pickerings will find their levees crowded with silk stocking gentry, but no yeomanry." (Jefferson to Gerry, June 11, 1812,Works: Ford,xi, 257.)

[106]Stoddert to McHenry, July 15, 1812, Steiner:Life and Correspondence of James McHenry, 581-83.

[107]"To the Citizens of the United States," in theSpirit of Seventy-Six, July 17, 1812.

[108]Stoddert refers to this person as "Jo Davies." By some this has been thought to refer to Marshall's brother-in-law, "Jo" Daveiss of Kentucky. But the latter was killed in the Battle of Tippecanoe, November 7, 1811.While the identity of Stoddert's agent cannot be established with certainty, he probably was one John Davis of Salisbury, England, as described in the text. "Jo" was then used for John as much as for Joseph; and Davis was frequently spelled "Davies." A John or "Jo" Davis or Davies, an Englishman, was a very busy person in America during the first decade of the nineteenth century. (See Loshe:Early American Novel, 74-77.) Naturally he would have been against the War of 1812, and he was just the sort of person that an impracticable man like Stoddert would have chosen for such a mission.

While the identity of Stoddert's agent cannot be established with certainty, he probably was one John Davis of Salisbury, England, as described in the text. "Jo" was then used for John as much as for Joseph; and Davis was frequently spelled "Davies." A John or "Jo" Davis or Davies, an Englishman, was a very busy person in America during the first decade of the nineteenth century. (See Loshe:Early American Novel, 74-77.) Naturally he would have been against the War of 1812, and he was just the sort of person that an impracticable man like Stoddert would have chosen for such a mission.

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

[110]See King,v, 266.

[111]Adams:U.S.v, 375-78.

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

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

[114]Am. State Papers, For. Rel.iii, 603; and see Charming:U.S.iv, 449.

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

[116]Marshall to Smith, July 27, 1812, Dreer MSS. "American Lawyers," Pa. Hist. Soc.A single quotation from the letters of Southern Federalists will show how accurately Marshall interpreted Federalist feeling during the War of 1812: "Heaven grant that ... our own Country may not be found ultimately, a solitary friend of this great Robber of Nations." (Tallmadge to McHenry, May 30, 1813, Steiner, 598.) The war had been in progress more than ten months when these words were written.

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

A single quotation from the letters of Southern Federalists will show how accurately Marshall interpreted Federalist feeling during the War of 1812: "Heaven grant that ... our own Country may not be found ultimately, a solitary friend of this great Robber of Nations." (Tallmadge to McHenry, May 30, 1813, Steiner, 598.) The war had been in progress more than ten months when these words were written.

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

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

[119]Marshall, however, was a member of the "Vigilance Committee" of Richmond, and took an important part in its activities. (Virginia Magazine of History and Biography,vii, 230-31.)

[120]Report of the Commissioners appointed to view Certain Rivers within the Commonwealth of Virginia, 5.

[121]A practicable route for travel and transportation between Virginia and the regions across the mountains had been a favorite project of Washington. The Potomac and James River Company, of which Marshall when a young lawyer had become a stockholder (vol.i, 218, of this work), was organized partly in furtherance of this project. The idea had remained active in the minds of public men in Virginia and was, perhaps, the one subject upon which they substantially agreed.

[122]Much of the course selected by Marshall was adopted in the building of the Chesapeake and Ohio Railway. In 1869, Collis P. Huntington made a trip of investigation over part of Marshall's route. (Nelson:Address—The Chesapeake and Ohio Railway, 15.)

[123]Report of the Commissioners appointed to view Certain Rivers within the Commonwealth of Virginia, 38-39.

[124]Niles:Weekly Register,ii, 418.

[125]Lowell:Mr. Madison's War: by "A New England Farmer."A still better illustration of Federalist hostility to the war and the Government is found in a letter of Ezekiel Webster to his brother Daniel: "Let gamblers be made to contribute to the support of this war, which was declared by men of no better principles than themselves." (Ezekiel Webster to Daniel Webster, Oct. 29, 1814, Van Tyne, 53.) Webster here refers to a war tax on playing-cards.

[125]Lowell:Mr. Madison's War: by "A New England Farmer."

A still better illustration of Federalist hostility to the war and the Government is found in a letter of Ezekiel Webster to his brother Daniel: "Let gamblers be made to contribute to the support of this war, which was declared by men of no better principles than themselves." (Ezekiel Webster to Daniel Webster, Oct. 29, 1814, Van Tyne, 53.) Webster here refers to a war tax on playing-cards.

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

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

[128]Morison:Otis,i, 399.

[129]Pickering to Pennington, July 22, 1812,N.E. Federalism: Adams, 389.

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

[131]Babcock, 157; and see Dewey:Financial History of the United States, 133.

[132]For an excellent statement of the conduct of the Federalists at this time see Morison:Otis,ii, 53-66. "The militia of Massachusetts, seventy thousand in enrolment, well-drilled, and well-equipped, was definitely withdrawn from the service of the United States in September, 1814." (Babcock, 155.) Connecticut did the same thing. (Ib.156.)

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

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

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

[136]Am. State Papers, For. Rel.iii, 609-12.

[137]The Republican victory was caused by the violent British partisanship of the Federalist leaders. In spite of the distress the people suffered from the Embargo, they could not, for the moment, tolerate Federalist opposition to their own country. (See Adams:U.S.v, 215.)

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

[139]Morison:Otis,ii, 54-56.

[140]"Curse This Government!I would march at 6 days notice for Washington ... and I would swear upon thealtarnever to return till Madison was buried under the ruins of the capitol." (Herbert to Webster, April 20, 1813, Van Tyne, 27.)

[141]The Federalists frantically opposed conscription. Daniel Webster, especially, denounced it. "Is this [conscription] ... consistent with the character of a free Government?... No, Sir.... The Constitution is libelled, foully libelled. The people of this country have not established ... such a fabric of despotism...."Where is it written in the Constitution ... that you may take children from their parents ... & compel them to fight the battles of any war, in which the folly or the wickedness of Government may engage it?... Such an abominable doctrine has no foundation in the Constitution."Conscription, Webster said, was a gambling device to throw the dice for blood; and it was a "horrible lottery." "May God, in his compassion, shield me from ... the enormity of this guilt." (See Webster's speech on the Conscription Bill delivered in the House of Representatives, December 9, 1814, Van Tyne, 56-68; see also Curtis:Life of Daniel Webster,i, 138.)Webster had foretold what he meant to do: "Of course we shall oppose such usurpation." (Webster to his brother, Oct. 30, 1814, Van Tyne, 54.) Again: "The conscription has not come up—if it does it will cause a storm such as was never witnessed here" [in Washington]. (Same to same, Nov. 29, 1814,ib.55.)

"Where is it written in the Constitution ... that you may take children from their parents ... & compel them to fight the battles of any war, in which the folly or the wickedness of Government may engage it?... Such an abominable doctrine has no foundation in the Constitution."

Conscription, Webster said, was a gambling device to throw the dice for blood; and it was a "horrible lottery." "May God, in his compassion, shield me from ... the enormity of this guilt." (See Webster's speech on the Conscription Bill delivered in the House of Representatives, December 9, 1814, Van Tyne, 56-68; see also Curtis:Life of Daniel Webster,i, 138.)

Webster had foretold what he meant to do: "Of course we shall oppose such usurpation." (Webster to his brother, Oct. 30, 1814, Van Tyne, 54.) Again: "The conscription has not come up—if it does it will cause a storm such as was never witnessed here" [in Washington]. (Same to same, Nov. 29, 1814,ib.55.)

[142]See Morison:Otis,ii, 78-199. Pickering feared that Cabot's moderation would prevent the Hartford Convention from taking extreme measures against the Government. (See Pickering to Lowell, Nov. 7, 1814,N.E. Federalism: Adams, 406.)

[143]Some sentences are paraphrases of expressions by Jefferson on the same subject. For example: "I hold the right of expatriation to be inherent in every man by the laws of nature, and incapable of being rightfully taken from him even by the united will of every other person in the nation." (Jefferson to Gallatin, June 26, 1806,Works: Ford,x, 273.) Again: "Our particular and separate grievance is only the impressment of our citizens. We must sacrifice the last dollar and drop of blood to rid us of that badge of slavery." (Jefferson to Crawford, Feb. 11, 1815,ib.xi, 450-51.) This letter was written at Monticello the very day that the news of peace reached Washington.

[144]Hay:A Treatise on Expatriation, 24.

[145]Lowell:Review of 'A Treatise on Expatriation': by "A Massachusetts Lawyer."

[146]See vol.iii, chap.i, of this work.

[147]SeeReview of 'A Treatise on Expatriation,' 6.

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

[149]See Channing:Jeff. System, 170-71.

[150]M'Ilvainevs.Coxe's Lessee, 4 Cranch, 209.

[151]Dawson's Lesseevs.Godfrey, 4 Cranch, 321.

[152]Case of the Santissima Trinidadet al., 1 Brockenbrough, 478-87; and see 7 Wheaton, 283.

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

[154]For example, the British "right" of impressment must be formally and plainly acknowledged in the treaty; an Indian dominion was to be established, and the Indian tribes were to be made parties to the settlements; the free navigation of the Mississippi was to be guaranteed to British vessels; the right of Americans to fish in Canadian waters was to be ended. Demands far more extreme were made by the British press and public. (See McMaster,iv, 260-74; and see especially Morison:Otis,ii, 171.)

[155]McMaster,iv, 383-88.

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