FOOTNOTES:

Joseph Story was born in Marblehead, Massachusetts, September 18, 1779, one of a family of eighteen children, seven by a first wife and eleven by a second. He was the eldest son of the second wife, who had been a Miss Pedrick, the daughter of a rich merchant and shipowner.[259]

No young member of the Massachusetts bar equaled Joseph Story in intellectual gifts and acquirements. He was a graduate of Harvard, and few men anywhere had a broader or more accurate education. His personality was winning and full of charm. Yet, when he began practice at Salem, he was "persecuted" with "extreme ... virulence" because of his political opinions.[260]He became so depressed by what he calls "the petty prejudices and sullen coolness of New England, ... bigoted in opinion and satisfied in forms," where Federalism had "persecuted ... [him] unrelentingly for ... [his] political principles," that he thought seriously of going to Baltimore to live and practice his profession. He made headway, however, in spite of opposition; and, when the growing Republican Party, "the whole" of which he says were his "warm advocates,"[261]secured the majority of his district, Story was sent to Congress. "I was ... of course a supporter of the administration of Mr. Jefferson and Mr. Madison," although not "amere slave to the opinions of either." In exercising what he terms his "independent judgment,"[262]Story favored the repeal of the Embargo, and so earned, henceforth, the lasting enmity of Jefferson.[263]

Because of his recognized talents, and perhaps also because of the political party to which he belonged, he was employed to go to Washington as attorney for the New England and Mississippi Company in the Yazoo controversy.[264]It was at this period that the New England Federalist leaders began to cultivate him. They appreciated his ability, and the assertion of his "independent principles" was to their liking. Harrison Gray Otis was quick to advise that seasoned politician, Robert Goodloe Harper, of the change he thought observable in Story, and the benefit of winning his regard. "He is a young man of talents, who commenced Democrat a few years since and was much fondled by his party," writes Otis. "He discovered however too much sentiment and honor to goall lengths... and a little attention from the right sort of people will be very useful to him & to us."[265]

The wise George Cabot gave Pickering the same hint when Story made one of his trips to Washington on the Yazoo business. "Though he is a man whom the Democrats support," says Cabot, "I have seldom if ever met with one of sounder mind on the principal points of national policy. He is well worthy the civil attention of the most respectable Federalists."[266]

It was while in the Capital, as attorney before Congress and the Supreme Court in the Georgia land controversy, that Story, then twenty-nine years old, met Marshall; and impulsively wrote of his delight in the "hearty laugh," "patience," consideration, and ability of the Chief Justice. On this visit to Washington the young Massachusetts lawyer took most of his meals with the members of the Supreme Court.[267]At that time began the devotion of Joseph Story to John Marshall which was to prove so helpful to both for more than a generation, and so influential upon the Republic for all time.

That Story, while in Washington, had copiously expressed his changing opinions, as well as his disapproval of Jefferson's Embargo, is certain; for he was "a very great talker,"[268]and stated his ideas with the volubility of his extremely exuberant nature. "At this time, as in after life," declares Story's son, "he was remarkable for fulness and fluency of conversation. It poured out from his mind ... sparkling, and exhaustless. Language was as a wide open sluice, through which every feeling and thought rushed forth.... It would be impossible to give an idea of his conversational powers."[269]

It was not strange, then, that Jefferson, who was eager for all gossip and managed to learn everything that happened, or was said to have happened, in Washington, heard of Story's association with the Federalists, his unguarded talk, and especially his admiration for the Chief Justice. It was plain toJefferson that such a person would never resist Marshall's influence.

In Jefferson's mind existed another objection to Story which may justly be inferred from the situation in which he found himself when the problem arose of filling the place on the Supreme Bench vacated by the death of Justice Cushing. Story had made a profound study of the law of real estate; and, young though he was, no lawyer in America equaled him, and few in England surpassed him, in the intricate learning of that branch of legal science. This fact was well known to the bar at Washington as well as to that of Massachusetts. Therefore, the thought of Story on the Supreme Bench, and under Marshall's influence, made Jefferson acutely uncomfortable; for the former President was then engaged in a lawsuit involving questions of real estate which, if decided against him, would, as he avowed, ruin him. This lawsuit was the famous Batture litigation. It was this predicament that led Jefferson to try to control the appointment of the successor to Cushing, whose death he declared to be "a Godsend"[270]to him personally; and also to dictate the naming of the district judge at Richmond to the vacancy caused by the demise of Judge Cyrus Griffin.

In the spring of 1810, Edward Livingston, formerly of New York and then of New Orleans, brought suit in the United States Court for the District of Virginia against Thomas Jefferson for damages to the amount of one hundred thousand dollars.This was the same Livingston who in Congress had been the Republican leader in the House when Marshall was a member of that body.[271]Afterwards he was appointed United States Attorney for the District of New York and then became Mayor of that city. During the yellow fever epidemic that scourged New York in 1803, Livingston devoted himself to the care of the victims of the plague, leaving the administration of the Mayor's office to a trusted clerk. In time Livingston, too, was stricken. During his illness his clerk embezzled large sums of the public money. The Mayor was liable and, upon his recovery, did not attempt to evade responsibility, but resigned his office and gave all his property to make good the defalcation. A heavy amount, however, still remained unpaid; and the discharge of this obligation became the ruling purpose of Livingston's life until, twenty years afterward, he accomplished his object.

His health regained, Livingston went to New Orleans to seek fortune anew. There he soon became the leader of the bar. When Wilkinson set up his reign of terror in that city, it was Edward Livingston who swore out writs of habeas corpus for those illegally imprisoned and, in general, was the most vigorous as well as the ablest of those who opposed Wilkinson's lawless and violent measures.[272]Jefferson had been displeased that Livingston had not shown more enthusiasm for him, when, in 1801, the Federalists had tried to elect Burr to the Presidency,and bitterly resented Livingston's interference with Wilkinson's plans to "suppress treason" in New Orleans.

One John Gravier, a lifelong resident of that city, had inherited from his brother Bertrand certain real estate abutting the river. Between this and the water the current had deposited an immense quantity of alluvium. The question of the title to this river-made land had never been raised, and everybody used it as a sort of common wharf front. Alert for opportunities to make money with which fully to discharge the defalcation in the New York Mayor's office, Livingston investigated the rightful ownership of the batture, as the alluvial deposit was termed; satisfied himself that the title was in Gravier; gave an opinion to that effect, and brought suit for the property as Gravier's attorney.[273]While the trial of Aaron Burr was in progress in Richmond, the Circuit Court in New Orleans rendered judgment in favor of Gravier,[274]who then conveyed half of his rights to his attorney, apparently as a fee for the recovery of the batture.

Livingston immediately began to improve his property, whereupon the people became excited and drove away his workmen. Governor Claiborne refused to protect him and referred the whole matter to Jefferson. The President did not direct the Attorney-General to bring suit for the possession of the batture—the obvious and the legal form of procedure. Indeed, the title to the property was not so much as examined. Jefferson did not even take intoconsideration the fact that, if Livingston was not the rightful owner of the batture, it might belong to the City of New Orleans. He merely assumed that it was National property; and, hastily acting under a law against squatters on lands belonging to the United States, he directed Secretary of State Madison to have all persons removed from the disputed premises. Accordingly, the United States Marshal was ordered to eject the "intruder" and his laborers. This was done; but Livingston told his men to return to their work and secured an injunction against the Marshal from further molesting them. That official ignored the order of the court and again drove the laborers off the batture.

Livingston begged the President to submit the controversy to arbitration or to judicial decision, but Jefferson was deaf to his pleas. The distracted lawyer appealed to Congress for relief.[275]That body ignored his petition.[276]He then brought suit against the Marshal in New Orleans for the recovery of his property. Soon afterward he brought another in Virginia against Jefferson for one hundred thousand dollars damages. Such, in brief outline, was the beginning of the famous "Batture Controversy," in which Jefferson and Livingston waged a war of pamphlets for years.

When he learned that Livingston had begun action against him in the Federal court at Richmond, Jefferson was much alarmed. In anticipation of the death of Judge Cyrus Griffin, Governor John Tylerhad written Jefferson that, while he "never did apply for an office," yet "Judge Griffin is in a low state of health, and holds my old office." Tyler continues: "I really hope the President will chance to think of me ... in case of accidents, and if an opportunity offers, lay me down softly on a bed ofroses in my latter days." He condemns Marshall for his opposition to the War of 1812, and especially for his reputed statement that Great Britain had done nothing to justify armed retaliation on our part.[277]"Is it possible," asks Tyler, "that a man who can assert this, can have any true sense of sound veracity? And yet these sort of folks retain their stations and consequence in life."[278]

Immediately Jefferson wrote to President Madison: "From what I can learn Griffin cannot stand it long, and really the state has suffered long enough by having such a cypher in so important an office, and infinitely the more from the want of any counter-point to the rancorous hatred which Marshall bears to the government of his country, & from the cunning & sophistry within which he is able to enshroud himself. It will be difficult to find a character of firmness enough to preserve his independence on the same bench with Marshall. Tyler, I am certain, would do it.... A milk & water character ... would be seen as a calamity. Tyler having been the former state judge of that court too, and removed to make way for so wretched a fool as Griffin,[279]has a kind of right of reclamation."

Jefferson gives other reasons for the appointment of Tyler, and then addresses Madison thus: "You have seen in the papers that Livingston has served a writ on me, stating damages at 100,000. D... I shall soon look into my papers to make a state of the case to enable them to plead." Jefferson hints broadly that he may have to summon as witnesses his "associates in the proceedings," one of whom was Madison himself.

He concludes this astounding letter in these words: "It is a little doubted that his [Livingston's] knolege [sic] of Marshall's character has induced him to bring this action. His twistifications of the law in the case of Marbury, in that of Burr, & the late Yazoo case shew how dexterously he can reconcile law to his personal biasses: and nobody seems to doubt that he is ready prepared to decide that Livingston's right to the batture is unquestionable, and that I am bound to pay for it with my private fortune."[280]

The next day Jefferson wrote Tyler that he had "laid it down as a law" to himself "never to embarrass the President with any solicitations." Yet, in Tyler's case, says Jefferson, "I ... have done it with all my heart, and in the full belief that I serve himand the public in urging the appointment." For, Jefferson confides to the man who, in case Madison named him, would, with Marshall, hear the suit, "we have long enough suffered under the base prostitution of the law to party passions in one judge, and the imbecility of another.

"In the hands of one [Marshall] the law is nothing more than an ambiguous text, to be explained by his sophistry into any meaning which may subserve his personal malice. Nor can any milk-and-water associate maintain his own independence, and by a firm pursuance of what the law really is, extend its protection to the citizens or the public.... And where you cannot induce your colleague to do what is right, you will be firm enough to hinder him from doing what is wrong, and by opposing sense to sophistry, leave the juries free to follow their own judgment."[281]

Upon the death of Judge Griffin in the following December, John Tyler was appointed to succeed him.

On September 13, 1810, William Cushing, Associate Justice of the Supreme Court, died. Only three Federalists now remained on the Supreme Bench, Samuel Chase, Bushrod Washington, and John Marshall. The other Justices, William Johnson of South Carolina, Brockholst Livingston of New York, and Thomas Todd of Kentucky, were Republicans, appointed by Jefferson. The selection of Cushing's successor would give the majority of the court to the Republican Party for the first time since its organization.That Madison would fill the vacancy by one of his own following was certain; but this was not enough to satisfy Jefferson, who wanted to make sure that the man selected was one who would not fall under Marshall's baleful influence. If Griffin did not die in time, Jefferson's fate in the batture litigation would be in Marshall's hands.

Should Griffin be polite enough to breathe his last promptly and Tyler be appointed in season, still Jefferson would not feel safe—the case might go to the jury, and who could tell what their verdict would be under Marshall's instructions? Even Tyler might not be able to "hinder" Marshall "from wrong doing"; for nothing was more probable than that, no matter what the issue of the case might be, it would be carried to the Supreme Court if any ground for appeal could be found. Certainly Jefferson would take it there if the case should go against him. It was vital, therefore, that the latest vacancy on the Supreme Bench should also be filled by a man on whom Jefferson could depend.

The new Justice must come from New England, Cushing having presided over that circuit. Republican lawyers there, fit for the place, were at that time extremely hard to find. Jefferson had been corresponding about the batture case with Gallatin, who had been his Secretary of the Treasury and continued in that office under Madison. The moment he learned of Cushing's death, Jefferson wrote to Gallatin in answer to a letter from that able man, admitting that "the Batture ... could not be within the scope of the law ... against squatters," undercolor of which Livingston had been forcibly ousted from that property. Jefferson adds: "I should so adjudge myself; yet I observe many opinions otherwise, and in defence against a spadassin it is lawful to use all weapons." The case is complex; still no unbiased man "can doubt what the issue of the case ought to be. What it will be, no one can tell.

"The judge's [Marshall's] inveteracy is profound, and his mind of that gloomy malignity which will never let him forego the opportunity of satiating it on a victim. His decisions, his instructions to a jury, his allowances and disallowances and garblings of evidence, must all be subjects of appeal.... And to whom is my appeal? From the judge in Burr's case to himself and his associate judges in the case of Marburyv.Madison.

"Not exactly, however. I observe old Cushing is dead.... The event is a fortunate one, and so timed as to be a Godsend to me. I am sure its importance to the nation will be felt, and the occasion employed to complete the great operation they have so long been executing, by the appointment of a decided Republican, with nothing equivocal about him. But who will it be?"

Jefferson warmly recommends Levi Lincoln, his former Attorney-General. Since the new Justice must come from New England, "can any other bring equal qualifications?... I know he was not deemed a profound common lawyer; but was there ever a profound common lawyer known in one of the Eastern States? There never was, nor never can be,one from those States.... Mr. Lincoln is ... as learned in their laws as any one they have."[282]

After allowing time for Gallatin to carry this message to the President, Jefferson wrote directly to Madison. He congratulates him on "the revocation of the French decrees"; abuses Great Britain for her "principle" of "the exclusive right to the sea by conquest"; and then comes to the matter of the vacancy on the Supreme Bench.

"Another circumstance of congratulation is the death of Cushing," which "gives an opportunity of closing the reformation [the Republican triumph of 1800] by a successor of unquestionable republican principles." Jefferson suggests Lincoln. "Were he out of the way," then Gideon Granger ought to be chosen, "tho' I am sensible that J.[ohn] R.[andolph] has been able to lessen the confidence of many in him.[283]... As the choice must be of a New Englander, ... I confess I know of none but these two characters." Of course there was Joseph Story, but he is "unquestionably a tory," and "too young."[284]

Madison strove to follow Jefferson's desires. Cushing's place was promptly offered to Lincoln, who declined it because of approaching blindness. Granger, of course, was impossible—the Senate would not have confirmed him. So Alexander Wolcott, "an active Democratic politician of Connecticut," of mediocre ability and "rather dubious ... character,"[285]was nominated; but the Senate rejected him. It seemed impossible to find a competent lawyer in New England who would satisfy Jefferson's requirements. John Quincy Adams, who had deserted the Federalist Party and acted with the Republicans, and who was then Minister to Russia, was appointed and promptly confirmed. Jefferson himself had not denounced Marshall so scathingly as had Adams in his report to the Senate on the proposed expulsion of Senator John Smith of Ohio.[286]It was certain that he would not, as Associate Justice, be controlled by the Chief Justice. But Adams preferred to continue in his diplomatic post, and refused the appointment.

Thus Story became the only possible choice. After all, he was still believed to be a Republican by everybody except Jefferson and the few Federalist leaders who had been discreetly cultivating him. At least his appointment would not be so bad as the selection of an out-and-out Federalist. On November 18, 1811, therefore, Joseph Story was made an Associate Justice of the Supreme Court of the United States. In Massachusetts his appointment "was ridiculed and condemned."[287]

Although Jefferson afterward declared that he"had a strong desire that the public should have been satisfied by a trial on the merits,"[288]he was willing that his counsel should prevent the case from coming to trial if they could. Fearing, however, that they would not succeed, Jefferson had prepared, for the use of his attorneys, an exhaustive brief covering his version of the facts and his views of the law. Spencer Roane, Judge of the Virginia Court of Appeals, and as hot a partisan of Jefferson as he was an implacable enemy of Marshall, read this manuscript and gave Tyler "some of the outlines of it." Tyler explains this to Jefferson after the decision in his favor, and adds that, much as Tyler wanted to get hold of Jefferson's brief, still, "as soon as I had received the appointment ... (which I owe to your favor in great measure), it became my duty to shut the door against every observation which might in any way be derived from either side, lest the impudent British faction, who had enlisted on Livingston's side, might suppose an undue influence had seized upon me."[289]

The case aroused keen interest in Virginia and, indeed, throughout the country. Jefferson was still the leader of the Republican Party and was as much beloved and revered as ever by the great majority of the people. When, therefore, he was sued for so large a sum of money, the fact excited wide and lively attention. That the plaintiff was such a man as Edward Livingston gave sharper edge to the general interest. Especially among lawyers, curiosity as to the outcome was keen. In Richmond, of course, "great expectation was excited."

When the case came on for hearing, Tyler was so ill from a very painful affliction that he could scarcely sit through the hearing; but he persisted because he had "determined to give an opinion." The question of jurisdiction alone was argued and only this was decided. Both judges agreed that the court had no jurisdiction, though Marshall did so with great reluctance. He wished "to carry the cause to the Supreme Court, by adjournment or somehow or other; but," says Tyler in his report to Jefferson, "I pressed the propriety of [its] being decided."[290]

Marshall, however, delivered a written opinion in which he gravely reflected on Jefferson's good faith in avoiding a trial on the merits. If the court, upon mere technicality, were prevented from trying and deciding the case, "the injured party may have a clear right without a remedy"; and that, too, "in a case where a person who has done the wrong, and who ought to make the compensation, is within the power of the court." The situation created by Jefferson's objection to the court's jurisdiction was unfortunate: "Where the remedy is against the person, and is within the power of the court, I have not yet discerned a reason, other than a technical one, which can satisfy my judgment" why the case should not be tried and justice done.

"If, however," continues Marshall, "this technical reason is firmly established, if all other judges respect it, I cannot venture to disregard it," no matterhow wrong in principle and injurious to Livingston the Chief Justice might think it. If Lord Mansfield, "one of the greatest judges who ever sat upon any bench, and who has done more than any other, to remove those technical impediments which ... too long continued to obstruct the course of substantial justice," had vainly attempted to remove the very "technical impediments" which Jefferson had thrown in Livingston's way, Marshall would not make the same fruitless effort.

To be sure, the technical point raised by Jefferson's counsel was a legal fiction derived from "the common law of England"; but "this common law has been adopted by the legislature of Virginia"; and "had it not been adopted, I should have thought it in force." Thus Marshall, by innuendo, blames Jefferson for invoking, for his own protection, a technicality of that very common law which the latter had so often and so violently denounced. For the third time Marshall deplores the use of a technicality "which produces the inconvenience of a clear right without a remedy." "Other judges have felt the weight of this argument, and have struggled ineffectually against" it; so, he concluded, "I must submit to it."[291]

Thus it was that Jefferson at last escaped; for it was nothing less than an escape. What a decision on the merits of the case would have been is shown by the opinion of Chancellor Kent, stated with his characteristic emphasis. Jefferson was anxious that the public should think that he was in the right. "Mr. Livingston's suit having gone off on the plea to thejurisdiction, it's foundation remains of course unexplained to the public. I have therefore concluded to make it public thro' the ... press.... I am well satisfied to be relieved from it, altho' I had a strong desire that the public should have been satisfied by a trial on the merits."[292]Accordingly, Jefferson prepared his statement of the controversy and, curiously enough, published it just before Livingston's suit against the United States Marshal in New Orleans was approaching decision. To no other of his documents did he give more patient and laborious care. Livingston replied in an article[293]which justified the great reputation for ability and learning he was soon to acquire in both Europe and America.[294]Kent followed this written debate carefully. When Livingston's answer appeared, Kent wrote him: "I read it eagerly and studied it thoroughly, with a re-examination of Jefferson as I went along; and I should now be as willing to subscribe my name to the validity of your title and to the atrocious injustice you have received as to any opinion contained in Johnson's Reports."[295]

Marshall's attitude in the Batture litigation intensified Jefferson's hatred for the Chief Justice, while Jefferson's conduct in the whole matter still further deepened Marshall's already profound belief that the great exponent of popular government was dishonest and cowardly. Story shared Marshall's views; indeed, the Batture controversy may be said to have furnished that personal element which completed Story's forming antagonism to Jefferson. "Who ... can remember, without regret, his conduct in relation to the batture of New Orleans?" wrote Story many years afterward.[296]

The Chief Justice attributed the attacks which Jefferson made upon him in later years to his opinion in Livingstonvs.Jefferson, and to the views he was known to have held as to the merits of that case and Jefferson's course in relation to it. "The Batture will never be forgotten," wrote the Chief Justice some years later when commenting on the attacks upon the National Judiciary which he attributed toJefferson.[297]Again: "The case of the mandamus[298]may be the cloak, but the batture is recollected with still more resentment."[299]

Events thus sharpened the hostility of Jefferson and his following to Marshall, but drew closer the bonds between the Chief Justice and Joseph Story. Once under Marshall's pleasing, steady, powerful influence, Story sped along the path of Nationalism until sometimes he was ahead of the great constructor who, as he advanced, was building an enduring and practicable highway.

FOOTNOTES:[156]Jefferson to Madison, May 25,1810,Works: Ford,xi, 140."There is no man in the court that strikes me like Marshall.... I have never seen a man of whose intellect I had a higher opinion." (Webster to his brother, March 28, 1814,Private Correspondence of Daniel Webster: Webster,i, 244.)[157]"In the possession of an ordinary man ... it [the office of Chief Justice] would be very apt to disgrace him." (Story to McLean, Oct. 12, 1835, Story,ii, 208.)[158]Justice Duval's name is often, incorrectly, spelled with two "l's."[159]"No man had ever a stronger influence upon the minds of others." (American Jurist,xiv, 242.)[160]Ingersoll:Historical Sketch of the Second War between the United States and Great Britain, 2d Series,i, 74.[161]"He was not, in any sense of the word, a learned man." (George S. Hillard inNorth American Review,xlii, 224.)[162]See vol.i, 163, of this work; alsoSouthern Literary Messenger,xvii, 154; and Terhune:Colonial Homesteads, 92.[163]See vol.ii, 139, of this work.[164]Mordecai:Richmond in By-Gone Days, 64.[165]Terhune, 91.[166]Ib.92; and see Howe:Historical Collections of Virginia, 266.[167]Green Bag,viii, 486.[168]Personal experience related by Dr. William P. Palmer to Dr. J. Franklin Jameson, and by him to the author.[169]Meade:Old Churches, Ministers and Families of Virginia,ii, 222.[170]Magazine of American History,xii, 70; alsoGreen Bag,viii, 486.[171]Anderson, 214.[172]The stage schedule was much shorter, but the hours of travel very long. The stage left Petersburg at 3A.M., arrived at Warrenton at 8P.M., left Warrenton at 3A.M., and arrived at Raleigh the same night. (Data furnished by Professor Archibald Henderson.) The stage was seldom on time, however, and the hardships of traveling in it very great. Marshall used it only when in extreme haste, a state of mind into which he seldom would be driven by any emergency.[173]Mordecai, 64-65. Bishop Meade says of Marshall on his trips to Fauquier County, "Servant he had none." (Meade,ii, 222.)[174]As related by M. D. Haywood, Librarian of the Supreme Court of North Carolina, to Professor Archibald Henderson and by him to the author; and seeHarper's Magazine,lxx, 610;World's Work,i, 395.[175]Judge James C. MacRae inJohn Marshall—Life, Character and Judicial Services: Dillon,ii, 68.[176]As late as April, 1811, the population of Raleigh was between six hundred and seven hundred. Nearly all the houses were of wood. By 1810 there were only four brick houses in the town.[177]Magazine of American History,xii, 69.[178]Account of eye-witness as related by Dr. Kemp P. Battle of Raleigh to Professor Henderson and by him to the author.Another tavern was opened about 1806 by one John Marshall. He had been one of the first commissioners of Raleigh, serving until 1797. He was no relation whatever to the Chief Justice. As already stated (vol.i, footnote to 15, of this work) the name was a common one.[179]Mr. W. J. Peele of Raleigh to Professor Henderson.[180]Seeinfra, 154-56.[181]Haywood to Steele, June 19, 1805. (MS. supplied by Professor Henderson.)[182]World's Work,i, 395. This statement is supported by the testimony of Mr. Edward V. Valentine of Richmond, who has spent many years gathering and verifying data concerning Richmond and its early citizens. It is also confirmed by the Honorable James Keith, until recently President of the Court of Appeals of Virginia, and by others of the older residents of Richmond. For some opinions thus written, see chaps,iv,v, andviof this volume.[183]Green Bag,viii, 484. Sympathetic Richmond even ordered the town clock and town bell muffled. (Meade,ii, 222.)[184]Statements of two eye-witnesses, Dr. Richard Crouch and William F. Gray, to Mr. Edward V. Valentine and by him related to the author.[185]Accounts given Professor J. Franklin Jameson by old residents of Richmond, and by Professor Jameson to the author.[186]Marshall to his wife, Washington, Feb. 16, 1818, MS.[187]Same to same, March 12, 1826, MS.[188]Same to same, Feb. 19, 1829, MS.[189]Marshall to his wife, Washington, Jan. 30, 1831, MS.[190]Seeinfra, chap.x.[191]Mrs. Marshall did not write to her children, it would seem. When he was in Richmond, the Chief Justice himself sent messages from her which were ordinary expressions of affection."Your mother is very much gratified with the account you give from yourself and Claudia of all your affairs & especially of your children and hopes for its continuance. She looks with some impatience for similar information from John. She desires me to send her love to all the family including Miss Maria and to tell you that this hot weather distresses her very much & she wishes you also to give her love to John & Elizabeth & their children." (Marshall to his son James K. Marshall, Richmond, July 3, 1827, MS.)[192]See vol.i, footnote to 189, of this work.[193]In Leeds Parish, near Oakhill, Fauquier County.[194]Meade,ii, 221-22.[195]Green Bag,viii, 487.[196]Howe, 275-76.[197]Ib.[198]This story was originally published in theWinchester Republican. The incident is said to have occurred at McGuire's hotel in Winchester. The newspaper account is reproduced in the Charleston (S.C.) edition (1845) of Howe's book, 275-76.[199]Joseph Story in Dillon,iii, 364-66.[200]Martineau:Retrospect of Western Travels,i, 150.[201]North American Review,xx, 444-45.[202]Marshall to Story, Oct. 29, 1828,Proceedings, Massachusetts Historical Society, 2d Series,xiv, 337-38.[203]Thomas, born July 21, 1784; Jacquelin Ambler, born December 3, 1787; Mary, born September 17, 1795; John, born January 15, 1798; James Keith, born February 13, 1800; Edward Carrington, born January 13, 1805. (Paxton:Marshall Family, Genealogical Chart.)[204]Edward Carrington was the only son to receive the degree of A.B. from Harvard (1826).[205]Paxton, 100.[206]Marshall to Story, June 26, 1831,Proceedings, Mass. Hist. Soc.2d Series,xiv, 344-46.[207]See vol.i, 55-56, of this work.[208]Howe (Charleston, S.C., ed. of 1845), 266.[209]Meade,ii, 222.[210]Tyler:Tyler,i, 220; and see vol.ii, 182-83, of this work.[211]White:A Sketch of Chester Harding, Artist, 195-96.[212]Lippincott's Magazine,ii, 624. Paulding makes this comment on Marshall: "In his hours of relaxation he was as full of fun and as natural as a child. He entered into the spirit of athletic exercises with the ardor of youth; and at sixty-odd years of age was one of the best quoit-players in Virginia." (Ib.626.)[213]American Turf Register and Sporting Magazine(1829),i, 41-42; and see Mordecai, 188-89.[214]Recipe for the Quoit Club punch,Green Bag,viii, 482. This recipe was used for many years by the Richmond Light Infantry Blues.[215]See vol.ii, 183, of this work.[216]On these occasions Mrs. Marshall spent the nights at the house of her daughter or sister.[217]For an extended description of Marshall's "lawyer dinners" see Terhune, 85-87.[218]See vol.i, 44-45, 153-54, of this work.[219]Marshall to Story, Nov. 26, 1826, Story,i, 506.[220]Story to his wife, Feb. 26, 1832,ib.ii, 84.[221]Marshall to Story, Sept. 30, 1829,Proceedings, Mass. Hist. Soc.2d Series,xiv, 341.[222]Statement of Miss Elizabeth Marshall of Leeds Manor to the author.[223]Meade,i, footnote to 99.[224]World's Work,i, 395.[225]Gustavus Schmidt inLouisiana Law Journal(1841),i, No. 1, 85-86. Mr. Schmidt's description is of Marshall in the court-room at Richmond when holding the United States Circuit Court at that place. Ticknor, Story, and others show that the same was true in Washington.[226]Quincy:Figures of the Past, 242-43.[227]Story to Fay, Feb. 25, 1808, Story,i, 166-67.[228]Story to Martineau, Oct. 8, 1835, Story,ii, 205.[229]Ib.i, 522.[230]Gustavus Schmidt inLouisiana Law Journal(1841),i, No. 1, 85-86.[231]Related to the author by Mr. Sussex D. Davis of the Philadelphia bar.[232]Related to the author by Thomas Marshall Smith of Baltimore, a descendant of Marshall. Mr. Smith says that this story has been handed down through three generations of his family.[233]Marshall to his wife, Feb. 14, 1817, MS.[234]Same to same, Jan. 4, 1823, MS.[235]For excellent descriptions of Washington society during Marshall's period see the letters of Moss Kent, then a Representative in Congress. These MSS. are in the Library of Congress. Also see Story to his wife, Feb. 7, 1810, Story,i, 196.[236]Marshall to his wife, Jan. 30, 1831, MS.[237]This was painted for the Boston Athenæum. See frontispiece in vol.iii. The other portrait by Harding, painted in Richmond (seesupra, 76), was given to Story who presented it to the Harvard Law School.[238]White:Sketch of Chester Harding, 194-96.For the Chief Justice to lose or forget articles of clothing was nothing unusual. "He lost a coat, when he dined at the Secretary of the Navy's," writes Story who had been making a search for Marshall's missing garment. (Story to Webster, March 18, 1828, Story MSS. Mass. Hist. Soc.)[239]Story,ii, 504-05.[240]Story to Williams, Feb. 16, 1812,ib.i, 214.[241]Story to Fay, Feb. 24, 1812,ib.215.[242]Ib.[243]Story to his wife, March 5, 1812, Story,i, 217.[244]Same to same, March 12, 1812,ib.219.[245]Magazine of American History,xii, 69; and see Quincy:Figures of the Past, 189-90. This tale, gathering picturesqueness as it was passed by word of mouth during many years, had its variations.[246]Marshall to Tazewell, Jan. 20, 1827, MS.[247]Wirt to Delaplaine, Nov. 5, 1818, Kennedy:Memoirs of the Life of William Wirt,ii, 85.[248]Bancroft to his wife, Jan. 23, 1832, Howe:Life and Letters of George Bancroft,i, 202.[249]Even Jefferson, in his bitterest attacks, never intimated anything against Marshall's integrity; and Spencer Roane, when assailing with great violence the opinion of the Chief Justice in M'Cullochvs.Maryland (seeinfra, chap,vi), paid a high tribute to the purity of his personal character.[250]Ticknor to his father, Feb. 1, 1815, Ticknor:Life, Letters, and Journals of George Ticknor,i, 33.[251]Description from personal observation, as quoted in Van Santvoord:Lives and Judicial Services of the Chief Justices, footnote to 363.[252]Ticknor to his father, as cited in note 1,supra.[253]Memoirs of John Quincy Adams: Adams,ix, 243.[254]Wirt to Carr, Dec. 30, 1827, Kennedy, 240. For Story's estimate of Marshall's personality see Dillon,iii, 363-66.[255]"He was solicitous to hear arguments, and not to decide causes without hearing them. And no judge ever profited more by them. No matter whether the subject was new or old; familiar to his thoughts or remote from them; buried under a mass of obsolete learning, or developed for the first time yesterday—whatever was its nature, he courted argument, nay, he demanded it." (Story in Dillon,iii, 377; and see vol.ii, 177-80, of this work.)[256]See Story's description of Harper, Duponceau, Rawle, Dallas, Ingersoll, Lee, and Martin (Story to Fay, Feb. 16, 1808, Story,i, 162-64); and of Pinkney (notessupra); also see Warren:History of the American Bar, 257-63. We must remember, too, that Webster, Hopkinson, Emmet, Wirt, Ogden, Clay, and others of equal ability and accomplishments, practiced before the Supreme Court when Marshall was Chief Justice.[257]Story relates that a single case was argued for nine days. (Story to Fay, Feb. 16, 1808, Story,i, 162.)In the Charlestown Bridge case, argued in 1831, the opening counsel on each side occupied three days. (Story to Ashmun, March 10, 1831,ib.ii, 51.)Four years later Story writes: "We have now a case ... which has been under argument eight days, and will probably occupy five more." (Story to Fay, March 2, 1835,ib.193.)In the lower courts the arguments were even longer. "This is the fourteenth day since this argument was opened. Pinkney ... promised to speak only two hours and a half. He has now spoken two days, and is, at this moment, at it again for the third day." (Wirt to his wife, April 7, 1821, Kennedy,ii, 119.)[258]Story,i, 96.[259]Story,i, 2. Elisha Story is said to have been one of the "Indians" who threw overboard the tea at Boston; and he fought at Lexington. When the Revolution got under way, he entered the American Army as a surgeon and served for about two years, when he resigned because of his disgust with the management of the medical department. (Ib.)[260]Story to Duval, March 30, 1803,ib.102.[261]Story to Williams, June 6, 1805,ib.105-06.[262]Story,i, 128.[263]At first, Story supported the Embargo.[264]See vol.iii, chap,x, of this work.[265]Otis to Harper, April 19, 1807, Morison:Otis,i, 283.[266]Cabot to Pickering, Jan. 28, 1808, Lodge:Cabot, 377.[267]Story to Fay, Feb. 16, 1808, Story,i, 162.[268]Moss Kent to James Kent, Feb. 1, 1817, Kent MSS. Lib. Cong.[269]Story,i, 140.[270]Jefferson to Gallatin, Sept. 27, 1810,Works: Ford,xi, footnote to 152-54.[271]See vol.ii, 461-74, of this work.[272]See vol.iii, chap,vi, of this work.[273]Hunt:Life of Edward Livingston, 138.[274]Ib.140.[275]Annals, 10th Cong. 2d Sess. 702.[276]Annals, 11th Cong. 1st and 2d Sess. 323, 327-49, 418-19, 1373, 1617-18, 1694-1702.[277]Seesupra, 25, 35-41.[278]Tyler to Jefferson, May 12, 1810, Tyler:Tyler,i, 246-47.[279]Cyrus Griffin was educated in England; was a member of the first Legislature of Virginia after the Declaration of Independence; was a delegate to the Continental Congress in 1778-81, and again in 1787-88, and was President of that body during the last year of his service. He was made President of the Supreme Court of Admiralty, and held that office until the court was abolished. When the Constitution was adopted, and Washington elected President, one of his first acts, after the passage of the Ellsworth Judiciary Law, was to appoint Judge Griffin to the newly created office of Judge of the United States Court for the District of Virginia. It is thus evident that Jefferson's statement was not accurate.[280]Jefferson to Madison, May 25, 1810,Works: Ford,xi, 139-41.[281]Jefferson to Tyler, May 26, 1810, Tyler:Tyler,i, 247-48; alsoWorks: Ford,xi, footnote to 141-43.[282]Jefferson to Gallatin, Sept. 27, 1810,Works: Ford,xi, footnote to 152-54.[283]Gideon Granger, as Jefferson's Postmaster-General, had lobbied on the floor of the House for the Yazoo Bill, offering government contracts for votes. He was denounced by Randolph in one of the most scathing arraignments ever heard in Congress. (See vol.iii, 578-79, of this work.)[284]Jefferson to Madison, Oct. 15, 1810,Works: Ford,xi, 150-52. Granger was an eager candidate for the place, and had asked Jefferson's support. In assuring him that it was given, Jefferson tells Granger of his "esteem & approbation," and adds that the appointment of "a firm unequivocating republican" is vital. (Jefferson to Granger, Oct. 22, 1810,ib.footnote to 155.)[285]Hildreth:History of the United States,vi, 241; and see Adams:U.S.v, 359-60.[286]See vol.iii, 541-43, of this work.[287]Story,i, 212.[288]Jefferson to Wirt, April 12, 1812,Works: Ford,xi, 227.[289]Tyler to Jefferson, May 17, 1812, Tyler:Tyler,i, 263.[290]Tyler to Jefferson, May 17, 1812, Tyler:Tyler,i, 263-64.[291]1 Brockenbrough, 206-12.[292]Jefferson to Wirt, April 12, 1812,Works: Ford,xi, 226-27. On the Batture controversy see Hildreth,vi, 143-48.[293]The articles of both Jefferson and Livingston are to be found in Hall'sAmerican Law Journal(Philadelphia, 1816), vol.v, 1-91, 113-289. A brief but valuable summary of Livingston's reply to Jefferson is found in Hunt:Livingston, 143-80. For an abstract of Jefferson's attack, see Randall:Life of Thomas Jefferson,iii, 266-68.[294]See Hunt:Livingston, 276-80.[295]Kent to Livingston, May 13, 1814, Hunt:Livingston, 181-82. Kent was appointed Chancellor of the State of New York, Feb. 25, 1814. His opinions are contained inJohnson's Chancery Reports, to which he refers in this letter.For twenty years Livingston fought for what he believed to be his rights to the batture, and, in the end, was successful; but in such fashion that the full value of the property was only realized by his family long after his death.Notwithstanding Jefferson's hostility, Livingston grew in public favor, was elected to the Louisiana State Legislature and then to Congress, where his work was notable. Later, in 1829, he was chosen United States Senator from that State; and, after serving one term, was appointed Secretary of State by President Jackson. In this office he prepared most of the President's state papers and wrote Jackson's great Nullification Proclamation in 1832.Livingston was then sent as Minister to France and, by his brilliant conduct of the negotiations over the French Spoliation Claims, secured the payment of them. He won fame throughout Europe and Spanish America by his various works on the penal code and code of procedure. In the learning of the law he was not far inferior to Story and Kent.Aside from one or two sketches, there is no account of his life except an inadequate biography by Charles H. Hunt.[296]Story,i, 186.[297]Marshall to Story, Sept. 18, 1821,Proceedings, Mass. Hist. Soc.2d series,xiv, 330; and seeinfra, 363-64.[298]Marburyvs.Madison.[299]Marshall to Story, July 13, 1821,Proceedings, Mass. Hist. Soc.2d series,xiv, 328-29.

[156]Jefferson to Madison, May 25,1810,Works: Ford,xi, 140."There is no man in the court that strikes me like Marshall.... I have never seen a man of whose intellect I had a higher opinion." (Webster to his brother, March 28, 1814,Private Correspondence of Daniel Webster: Webster,i, 244.)

[156]Jefferson to Madison, May 25,1810,Works: Ford,xi, 140.

"There is no man in the court that strikes me like Marshall.... I have never seen a man of whose intellect I had a higher opinion." (Webster to his brother, March 28, 1814,Private Correspondence of Daniel Webster: Webster,i, 244.)

[157]"In the possession of an ordinary man ... it [the office of Chief Justice] would be very apt to disgrace him." (Story to McLean, Oct. 12, 1835, Story,ii, 208.)

[158]Justice Duval's name is often, incorrectly, spelled with two "l's."

[159]"No man had ever a stronger influence upon the minds of others." (American Jurist,xiv, 242.)

[160]Ingersoll:Historical Sketch of the Second War between the United States and Great Britain, 2d Series,i, 74.

[161]"He was not, in any sense of the word, a learned man." (George S. Hillard inNorth American Review,xlii, 224.)

[162]See vol.i, 163, of this work; alsoSouthern Literary Messenger,xvii, 154; and Terhune:Colonial Homesteads, 92.

[163]See vol.ii, 139, of this work.

[164]Mordecai:Richmond in By-Gone Days, 64.

[165]Terhune, 91.

[166]Ib.92; and see Howe:Historical Collections of Virginia, 266.

[167]Green Bag,viii, 486.

[168]Personal experience related by Dr. William P. Palmer to Dr. J. Franklin Jameson, and by him to the author.

[169]Meade:Old Churches, Ministers and Families of Virginia,ii, 222.

[170]Magazine of American History,xii, 70; alsoGreen Bag,viii, 486.

[171]Anderson, 214.

[172]The stage schedule was much shorter, but the hours of travel very long. The stage left Petersburg at 3A.M., arrived at Warrenton at 8P.M., left Warrenton at 3A.M., and arrived at Raleigh the same night. (Data furnished by Professor Archibald Henderson.) The stage was seldom on time, however, and the hardships of traveling in it very great. Marshall used it only when in extreme haste, a state of mind into which he seldom would be driven by any emergency.

[173]Mordecai, 64-65. Bishop Meade says of Marshall on his trips to Fauquier County, "Servant he had none." (Meade,ii, 222.)

[174]As related by M. D. Haywood, Librarian of the Supreme Court of North Carolina, to Professor Archibald Henderson and by him to the author; and seeHarper's Magazine,lxx, 610;World's Work,i, 395.

[175]Judge James C. MacRae inJohn Marshall—Life, Character and Judicial Services: Dillon,ii, 68.

[176]As late as April, 1811, the population of Raleigh was between six hundred and seven hundred. Nearly all the houses were of wood. By 1810 there were only four brick houses in the town.

[177]Magazine of American History,xii, 69.

[178]Account of eye-witness as related by Dr. Kemp P. Battle of Raleigh to Professor Henderson and by him to the author.Another tavern was opened about 1806 by one John Marshall. He had been one of the first commissioners of Raleigh, serving until 1797. He was no relation whatever to the Chief Justice. As already stated (vol.i, footnote to 15, of this work) the name was a common one.

[178]Account of eye-witness as related by Dr. Kemp P. Battle of Raleigh to Professor Henderson and by him to the author.

Another tavern was opened about 1806 by one John Marshall. He had been one of the first commissioners of Raleigh, serving until 1797. He was no relation whatever to the Chief Justice. As already stated (vol.i, footnote to 15, of this work) the name was a common one.

[179]Mr. W. J. Peele of Raleigh to Professor Henderson.

[180]Seeinfra, 154-56.

[181]Haywood to Steele, June 19, 1805. (MS. supplied by Professor Henderson.)

[182]World's Work,i, 395. This statement is supported by the testimony of Mr. Edward V. Valentine of Richmond, who has spent many years gathering and verifying data concerning Richmond and its early citizens. It is also confirmed by the Honorable James Keith, until recently President of the Court of Appeals of Virginia, and by others of the older residents of Richmond. For some opinions thus written, see chaps,iv,v, andviof this volume.

[183]Green Bag,viii, 484. Sympathetic Richmond even ordered the town clock and town bell muffled. (Meade,ii, 222.)

[184]Statements of two eye-witnesses, Dr. Richard Crouch and William F. Gray, to Mr. Edward V. Valentine and by him related to the author.

[185]Accounts given Professor J. Franklin Jameson by old residents of Richmond, and by Professor Jameson to the author.

[186]Marshall to his wife, Washington, Feb. 16, 1818, MS.

[187]Same to same, March 12, 1826, MS.

[188]Same to same, Feb. 19, 1829, MS.

[189]Marshall to his wife, Washington, Jan. 30, 1831, MS.

[190]Seeinfra, chap.x.

[191]Mrs. Marshall did not write to her children, it would seem. When he was in Richmond, the Chief Justice himself sent messages from her which were ordinary expressions of affection."Your mother is very much gratified with the account you give from yourself and Claudia of all your affairs & especially of your children and hopes for its continuance. She looks with some impatience for similar information from John. She desires me to send her love to all the family including Miss Maria and to tell you that this hot weather distresses her very much & she wishes you also to give her love to John & Elizabeth & their children." (Marshall to his son James K. Marshall, Richmond, July 3, 1827, MS.)

[191]Mrs. Marshall did not write to her children, it would seem. When he was in Richmond, the Chief Justice himself sent messages from her which were ordinary expressions of affection.

"Your mother is very much gratified with the account you give from yourself and Claudia of all your affairs & especially of your children and hopes for its continuance. She looks with some impatience for similar information from John. She desires me to send her love to all the family including Miss Maria and to tell you that this hot weather distresses her very much & she wishes you also to give her love to John & Elizabeth & their children." (Marshall to his son James K. Marshall, Richmond, July 3, 1827, MS.)

[192]See vol.i, footnote to 189, of this work.

[193]In Leeds Parish, near Oakhill, Fauquier County.

[194]Meade,ii, 221-22.

[195]Green Bag,viii, 487.

[196]Howe, 275-76.

[197]Ib.

[198]This story was originally published in theWinchester Republican. The incident is said to have occurred at McGuire's hotel in Winchester. The newspaper account is reproduced in the Charleston (S.C.) edition (1845) of Howe's book, 275-76.

[199]Joseph Story in Dillon,iii, 364-66.

[200]Martineau:Retrospect of Western Travels,i, 150.

[201]North American Review,xx, 444-45.

[202]Marshall to Story, Oct. 29, 1828,Proceedings, Massachusetts Historical Society, 2d Series,xiv, 337-38.

[203]Thomas, born July 21, 1784; Jacquelin Ambler, born December 3, 1787; Mary, born September 17, 1795; John, born January 15, 1798; James Keith, born February 13, 1800; Edward Carrington, born January 13, 1805. (Paxton:Marshall Family, Genealogical Chart.)

[204]Edward Carrington was the only son to receive the degree of A.B. from Harvard (1826).

[205]Paxton, 100.

[206]Marshall to Story, June 26, 1831,Proceedings, Mass. Hist. Soc.2d Series,xiv, 344-46.

[207]See vol.i, 55-56, of this work.

[208]Howe (Charleston, S.C., ed. of 1845), 266.

[209]Meade,ii, 222.

[210]Tyler:Tyler,i, 220; and see vol.ii, 182-83, of this work.

[211]White:A Sketch of Chester Harding, Artist, 195-96.

[212]Lippincott's Magazine,ii, 624. Paulding makes this comment on Marshall: "In his hours of relaxation he was as full of fun and as natural as a child. He entered into the spirit of athletic exercises with the ardor of youth; and at sixty-odd years of age was one of the best quoit-players in Virginia." (Ib.626.)

[213]American Turf Register and Sporting Magazine(1829),i, 41-42; and see Mordecai, 188-89.

[214]Recipe for the Quoit Club punch,Green Bag,viii, 482. This recipe was used for many years by the Richmond Light Infantry Blues.

[215]See vol.ii, 183, of this work.

[216]On these occasions Mrs. Marshall spent the nights at the house of her daughter or sister.

[217]For an extended description of Marshall's "lawyer dinners" see Terhune, 85-87.

[218]See vol.i, 44-45, 153-54, of this work.

[219]Marshall to Story, Nov. 26, 1826, Story,i, 506.

[220]Story to his wife, Feb. 26, 1832,ib.ii, 84.

[221]Marshall to Story, Sept. 30, 1829,Proceedings, Mass. Hist. Soc.2d Series,xiv, 341.

[222]Statement of Miss Elizabeth Marshall of Leeds Manor to the author.

[223]Meade,i, footnote to 99.

[224]World's Work,i, 395.

[225]Gustavus Schmidt inLouisiana Law Journal(1841),i, No. 1, 85-86. Mr. Schmidt's description is of Marshall in the court-room at Richmond when holding the United States Circuit Court at that place. Ticknor, Story, and others show that the same was true in Washington.

[226]Quincy:Figures of the Past, 242-43.

[227]Story to Fay, Feb. 25, 1808, Story,i, 166-67.

[228]Story to Martineau, Oct. 8, 1835, Story,ii, 205.

[229]Ib.i, 522.

[230]Gustavus Schmidt inLouisiana Law Journal(1841),i, No. 1, 85-86.

[231]Related to the author by Mr. Sussex D. Davis of the Philadelphia bar.

[232]Related to the author by Thomas Marshall Smith of Baltimore, a descendant of Marshall. Mr. Smith says that this story has been handed down through three generations of his family.

[233]Marshall to his wife, Feb. 14, 1817, MS.

[234]Same to same, Jan. 4, 1823, MS.

[235]For excellent descriptions of Washington society during Marshall's period see the letters of Moss Kent, then a Representative in Congress. These MSS. are in the Library of Congress. Also see Story to his wife, Feb. 7, 1810, Story,i, 196.

[236]Marshall to his wife, Jan. 30, 1831, MS.

[237]This was painted for the Boston Athenæum. See frontispiece in vol.iii. The other portrait by Harding, painted in Richmond (seesupra, 76), was given to Story who presented it to the Harvard Law School.

[238]White:Sketch of Chester Harding, 194-96.For the Chief Justice to lose or forget articles of clothing was nothing unusual. "He lost a coat, when he dined at the Secretary of the Navy's," writes Story who had been making a search for Marshall's missing garment. (Story to Webster, March 18, 1828, Story MSS. Mass. Hist. Soc.)

[238]White:Sketch of Chester Harding, 194-96.

For the Chief Justice to lose or forget articles of clothing was nothing unusual. "He lost a coat, when he dined at the Secretary of the Navy's," writes Story who had been making a search for Marshall's missing garment. (Story to Webster, March 18, 1828, Story MSS. Mass. Hist. Soc.)

[239]Story,ii, 504-05.

[240]Story to Williams, Feb. 16, 1812,ib.i, 214.

[241]Story to Fay, Feb. 24, 1812,ib.215.

[242]Ib.

[243]Story to his wife, March 5, 1812, Story,i, 217.

[244]Same to same, March 12, 1812,ib.219.

[245]Magazine of American History,xii, 69; and see Quincy:Figures of the Past, 189-90. This tale, gathering picturesqueness as it was passed by word of mouth during many years, had its variations.

[246]Marshall to Tazewell, Jan. 20, 1827, MS.

[247]Wirt to Delaplaine, Nov. 5, 1818, Kennedy:Memoirs of the Life of William Wirt,ii, 85.

[248]Bancroft to his wife, Jan. 23, 1832, Howe:Life and Letters of George Bancroft,i, 202.

[249]Even Jefferson, in his bitterest attacks, never intimated anything against Marshall's integrity; and Spencer Roane, when assailing with great violence the opinion of the Chief Justice in M'Cullochvs.Maryland (seeinfra, chap,vi), paid a high tribute to the purity of his personal character.

[250]Ticknor to his father, Feb. 1, 1815, Ticknor:Life, Letters, and Journals of George Ticknor,i, 33.

[251]Description from personal observation, as quoted in Van Santvoord:Lives and Judicial Services of the Chief Justices, footnote to 363.

[252]Ticknor to his father, as cited in note 1,supra.

[253]Memoirs of John Quincy Adams: Adams,ix, 243.

[254]Wirt to Carr, Dec. 30, 1827, Kennedy, 240. For Story's estimate of Marshall's personality see Dillon,iii, 363-66.

[255]"He was solicitous to hear arguments, and not to decide causes without hearing them. And no judge ever profited more by them. No matter whether the subject was new or old; familiar to his thoughts or remote from them; buried under a mass of obsolete learning, or developed for the first time yesterday—whatever was its nature, he courted argument, nay, he demanded it." (Story in Dillon,iii, 377; and see vol.ii, 177-80, of this work.)

[256]See Story's description of Harper, Duponceau, Rawle, Dallas, Ingersoll, Lee, and Martin (Story to Fay, Feb. 16, 1808, Story,i, 162-64); and of Pinkney (notessupra); also see Warren:History of the American Bar, 257-63. We must remember, too, that Webster, Hopkinson, Emmet, Wirt, Ogden, Clay, and others of equal ability and accomplishments, practiced before the Supreme Court when Marshall was Chief Justice.

[257]Story relates that a single case was argued for nine days. (Story to Fay, Feb. 16, 1808, Story,i, 162.)In the Charlestown Bridge case, argued in 1831, the opening counsel on each side occupied three days. (Story to Ashmun, March 10, 1831,ib.ii, 51.)Four years later Story writes: "We have now a case ... which has been under argument eight days, and will probably occupy five more." (Story to Fay, March 2, 1835,ib.193.)In the lower courts the arguments were even longer. "This is the fourteenth day since this argument was opened. Pinkney ... promised to speak only two hours and a half. He has now spoken two days, and is, at this moment, at it again for the third day." (Wirt to his wife, April 7, 1821, Kennedy,ii, 119.)

[257]Story relates that a single case was argued for nine days. (Story to Fay, Feb. 16, 1808, Story,i, 162.)

In the Charlestown Bridge case, argued in 1831, the opening counsel on each side occupied three days. (Story to Ashmun, March 10, 1831,ib.ii, 51.)

Four years later Story writes: "We have now a case ... which has been under argument eight days, and will probably occupy five more." (Story to Fay, March 2, 1835,ib.193.)

In the lower courts the arguments were even longer. "This is the fourteenth day since this argument was opened. Pinkney ... promised to speak only two hours and a half. He has now spoken two days, and is, at this moment, at it again for the third day." (Wirt to his wife, April 7, 1821, Kennedy,ii, 119.)

[258]Story,i, 96.

[259]Story,i, 2. Elisha Story is said to have been one of the "Indians" who threw overboard the tea at Boston; and he fought at Lexington. When the Revolution got under way, he entered the American Army as a surgeon and served for about two years, when he resigned because of his disgust with the management of the medical department. (Ib.)

[260]Story to Duval, March 30, 1803,ib.102.

[261]Story to Williams, June 6, 1805,ib.105-06.

[262]Story,i, 128.

[263]At first, Story supported the Embargo.

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

[265]Otis to Harper, April 19, 1807, Morison:Otis,i, 283.

[266]Cabot to Pickering, Jan. 28, 1808, Lodge:Cabot, 377.

[267]Story to Fay, Feb. 16, 1808, Story,i, 162.

[268]Moss Kent to James Kent, Feb. 1, 1817, Kent MSS. Lib. Cong.

[269]Story,i, 140.

[270]Jefferson to Gallatin, Sept. 27, 1810,Works: Ford,xi, footnote to 152-54.

[271]See vol.ii, 461-74, of this work.

[272]See vol.iii, chap,vi, of this work.

[273]Hunt:Life of Edward Livingston, 138.

[274]Ib.140.

[275]Annals, 10th Cong. 2d Sess. 702.

[276]Annals, 11th Cong. 1st and 2d Sess. 323, 327-49, 418-19, 1373, 1617-18, 1694-1702.

[277]Seesupra, 25, 35-41.

[278]Tyler to Jefferson, May 12, 1810, Tyler:Tyler,i, 246-47.

[279]Cyrus Griffin was educated in England; was a member of the first Legislature of Virginia after the Declaration of Independence; was a delegate to the Continental Congress in 1778-81, and again in 1787-88, and was President of that body during the last year of his service. He was made President of the Supreme Court of Admiralty, and held that office until the court was abolished. When the Constitution was adopted, and Washington elected President, one of his first acts, after the passage of the Ellsworth Judiciary Law, was to appoint Judge Griffin to the newly created office of Judge of the United States Court for the District of Virginia. It is thus evident that Jefferson's statement was not accurate.

[280]Jefferson to Madison, May 25, 1810,Works: Ford,xi, 139-41.

[281]Jefferson to Tyler, May 26, 1810, Tyler:Tyler,i, 247-48; alsoWorks: Ford,xi, footnote to 141-43.

[282]Jefferson to Gallatin, Sept. 27, 1810,Works: Ford,xi, footnote to 152-54.

[283]Gideon Granger, as Jefferson's Postmaster-General, had lobbied on the floor of the House for the Yazoo Bill, offering government contracts for votes. He was denounced by Randolph in one of the most scathing arraignments ever heard in Congress. (See vol.iii, 578-79, of this work.)

[284]Jefferson to Madison, Oct. 15, 1810,Works: Ford,xi, 150-52. Granger was an eager candidate for the place, and had asked Jefferson's support. In assuring him that it was given, Jefferson tells Granger of his "esteem & approbation," and adds that the appointment of "a firm unequivocating republican" is vital. (Jefferson to Granger, Oct. 22, 1810,ib.footnote to 155.)

[285]Hildreth:History of the United States,vi, 241; and see Adams:U.S.v, 359-60.

[286]See vol.iii, 541-43, of this work.

[287]Story,i, 212.

[288]Jefferson to Wirt, April 12, 1812,Works: Ford,xi, 227.

[289]Tyler to Jefferson, May 17, 1812, Tyler:Tyler,i, 263.

[290]Tyler to Jefferson, May 17, 1812, Tyler:Tyler,i, 263-64.

[291]1 Brockenbrough, 206-12.

[292]Jefferson to Wirt, April 12, 1812,Works: Ford,xi, 226-27. On the Batture controversy see Hildreth,vi, 143-48.

[293]The articles of both Jefferson and Livingston are to be found in Hall'sAmerican Law Journal(Philadelphia, 1816), vol.v, 1-91, 113-289. A brief but valuable summary of Livingston's reply to Jefferson is found in Hunt:Livingston, 143-80. For an abstract of Jefferson's attack, see Randall:Life of Thomas Jefferson,iii, 266-68.

[294]See Hunt:Livingston, 276-80.

[295]Kent to Livingston, May 13, 1814, Hunt:Livingston, 181-82. Kent was appointed Chancellor of the State of New York, Feb. 25, 1814. His opinions are contained inJohnson's Chancery Reports, to which he refers in this letter.For twenty years Livingston fought for what he believed to be his rights to the batture, and, in the end, was successful; but in such fashion that the full value of the property was only realized by his family long after his death.Notwithstanding Jefferson's hostility, Livingston grew in public favor, was elected to the Louisiana State Legislature and then to Congress, where his work was notable. Later, in 1829, he was chosen United States Senator from that State; and, after serving one term, was appointed Secretary of State by President Jackson. In this office he prepared most of the President's state papers and wrote Jackson's great Nullification Proclamation in 1832.Livingston was then sent as Minister to France and, by his brilliant conduct of the negotiations over the French Spoliation Claims, secured the payment of them. He won fame throughout Europe and Spanish America by his various works on the penal code and code of procedure. In the learning of the law he was not far inferior to Story and Kent.Aside from one or two sketches, there is no account of his life except an inadequate biography by Charles H. Hunt.

For twenty years Livingston fought for what he believed to be his rights to the batture, and, in the end, was successful; but in such fashion that the full value of the property was only realized by his family long after his death.

Notwithstanding Jefferson's hostility, Livingston grew in public favor, was elected to the Louisiana State Legislature and then to Congress, where his work was notable. Later, in 1829, he was chosen United States Senator from that State; and, after serving one term, was appointed Secretary of State by President Jackson. In this office he prepared most of the President's state papers and wrote Jackson's great Nullification Proclamation in 1832.

Livingston was then sent as Minister to France and, by his brilliant conduct of the negotiations over the French Spoliation Claims, secured the payment of them. He won fame throughout Europe and Spanish America by his various works on the penal code and code of procedure. In the learning of the law he was not far inferior to Story and Kent.

Aside from one or two sketches, there is no account of his life except an inadequate biography by Charles H. Hunt.

[296]Story,i, 186.

[297]Marshall to Story, Sept. 18, 1821,Proceedings, Mass. Hist. Soc.2d series,xiv, 330; and seeinfra, 363-64.

[298]Marburyvs.Madison.

[299]Marshall to Story, July 13, 1821,Proceedings, Mass. Hist. Soc.2d series,xiv, 328-29.

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