The Education of John Marshall

A man is bound to be parochial in his practice — to give his life, and if necessary his death, for the place where he has had his roots. But his thinking should be cosmopolitan and detached. — MR. JUSTICE HOLMES.

HISTORICAL biography is a form of literature in which Americans have never excelled. Not because of failure to cultivate the field. A comprehensive collection of American historical biography will outbulk that of any other country, and the curve of production is steadily rising.

Politicians have discovered that a good biography is the easiest step into history. Two generations later one’s vices will be forgotten, but one’s virtues will live in the printed page. A wise statesman picks his biographer as carefully as he makes a will ; and the burial of a politician follows rather than precedes the announcement of a definitive Life and Letters.

Publishers have discovered that the dear public will read history only in the form of biography. A new life of Napoleon is snapped up, while a sound and readable History of France, 1795-1815, clogs the counters. The young Ph.D. who submits his thesis on the ‘ History of the Loco-foco Movement in Alabama’ is requested to rewrite it as ’The Public Career of the Hon. Jefferson Scattering Batkins, American.’ The history of any state in the Union for the last fifty years must be picked out from several dozen political biographies. American historical biography is no declining industry.

Quality is not up to quantity. We have a fair number of excellent brief biographies and genre portraits, such as Paul Leicester Ford’s Many-sided Franklin, Owen Wister’s Grant, and Barrett Wendell’s Cotton Mather. But even this class is headed by Lord Charnwood’s Lincoln. Our conspicuous deficiency is in comprehensive biographies of both historical and literary value: works such as Morley’s Gladstone, Carlyle’s Frederick, and Trevelyan’s trilogy on Charles James Fox. Few will deny membership in this class to Irving’s Washington, and Nicolay and Hay’s Lincoln. But the eligible list is practically exhausted after mentioning Henry Adams’s Gallatin, John Spencer Bassett’s Jackson, and Carl Schurz’s Clay. Definitive biographies of Hamilton, Jefferson, Madison, and Calhoun are still lacking.

One outstanding figure among the ‘fathers’ has received his full due. Ten years ago, James Bradley Thayer wrote one of the most brilliant of our biographical essays — a diminutive life of John Marshall. Ex-Senator Albert J. Beveridge of Indiana has now completed a monumental life of the great Chief Justice, that will rank with the best historical biographies of American statesmen.¹

I

No American save Washington and Lincoln has been more universally appreciated than John Marshall. To the bench and the bar he has become a patron saint. ‘ Every schoolboy ’ must learn at least the titles of his great constitutional decisions — of Marbury vs. Madison, McCulloch vs. Maryland, Cohens vs. Virginia, and the Dartmouth College case. He is rightly taught that, but for these decisions, American nationalism must have succumbed to sectionalism and state rights, before a sword could be drawn in its defense. Yet to the rank and file of laymen, Marshall has remained rather a wooden figure. His new biographer, without neglecting the solid aspects of his subject, has given us a complete picture of Marshall the frontiersman, revolutionary soldier, and struggling lawyer; Marshall the jovial host of a thousand dinners, the champion of the Richmond Quoit club, and the tender husband of an invalid wife.

Beveridge’s Marshall is not preëminent for literary quality. The author has hidden himself too modestly behind his subject. In his anxiety to be sound and accurate he has sacrificed smooth narrative to quotation and excerpt. But the book is sound, honest, and readable. The author has exhausted the sources, sifted the evidence with the meticulous care of a professional historian, and culled with the experience of one who knows men and women and politicians. He has not hesitated to sacrifice his dearest prepossessions in face of the facts. His descriptions of persons and incidents are lively, incisive, and just, throughout the four volumes.

John Marshall was not predestined to Federalism, like an Otis of Boston or a Pinckney of Charleston. He was a child of the frontier. But his mind was not a mirror of this frontier, like Jackson’s or Benton’s. No American statesman of that generation knew his people so intimately; few trusted them less; none was so utterly devoid of local prejudice. Marshall began his education in the Virginia forest, and his political training in the Virginia capital ; but he grew out of and beyond his environment. The surging tides of history were his teachers. The War of Independence, the period of debt and disillusion, the struggle for federal union, and the French Revolution, were the forces that moulded the man who, as Chief Justice, moulded our Constitution.

The education of John Marshall, then, is the outstanding contribution of this biography. To the growth of Marshall’s mind, Senator Beveridge has properly allotted more than half his space.

II

The Marshalls belonged to the class of lesser planters, younger sons of the ‘F.F.V.’s’ who were pushed westward by the exhaustion of tidewater tobaccofields. John’s paternal ancestry cannot be traced with certainty beyond his grandfather, a poor planter ‘of the forest.’ His mother was of gentle blood: Scots-Jacobite Keith on her father’s, Randolph of Turkey Island on her mother’s side. Through the latter, she was second cousin to Thomas Jefferson.

Historians have explained Jefferson in terms of the western frontier. The same equation will not solve John Marshall. Born of the same stock, reared under like conditions, these two cousins developed radically contrasting characters and opinions. It was, in fact, the same section of Virginia, and the same class of lesser planters, that produced George Mason, James Madison, Patrick Henry, and George Washington, who, with Jefferson and Marshall, form the most remarkable and most dissimilar group of statesmen ever concentrated within one region and generation in our country, perhaps in any country. Some future historian may well explain the stormy politics of our Federal period as a family quarrel in Virginia!

John Marshall was born in a logcabin on the fringe of the Virginia frontier three months after Braddock’s defeat in 1755. He was the eldest of fifteen children, all of whom lived to be married. When he was ten years old, the entire family moved westward again into the Great Valley, where conditions were even more primitive, although a one-story frame house, The Hollow, was substituted for the usual cabin. A few years later, his father built Oak Hill, the first frame house with glazed windows in that section of Virginia.

Game and fish were the principal food of the family; even ‘hog and hominy’ were luxuries. Chief Justice Marshall remembered the shout of joy that went up from the hungry brood when hasty pudding was announced for dinner. He and the swarm of younger brothers were clothed as the traditional frontiersmen — buckskin moccasins and breeches, coarse linen shirt, and coonskin cap; even homespun woolens were luxuries on this hunting, furtrading frontier, and the mothers used thorns for lack of pins. The boys grew up in the same rough-and-tumble environment as Abraham Lincoln.

These material conditions of his childhood left no trace on the opinions of John Marshall. But they stamped his character with a fundamental simplicity, and left an indelible mark on his appearance, taste, and habits. Like Washington, he was of powerful physique, but unmilitary in his carriage and ungraceful in his movements. With every attribute of a Virginia gentleman, — honor, truth, chivalry, courtesy, and sociability, — Marshall combined a total lack of exterior polish. His manners and his appearance were never conventional. The first time he visited Philadelphia, his scarecrow aspect refused him entrance to a common tavern; and at the height of his career he was notorious for shabby, outworn garments. In Richmond to-day one may still hear anecdotes of the Chief Justice being mistaken for a porter or a butcher; of the Chief Justice riding out to his country place, holding to the pommel a whiskey-jug stopped by his thumb.

Marshall never lost the common touch. He remained simple and unpretentious to the end. He preferred the gossip of Richmond market, or the fireside circle of a roadside tavern, to a diplomatic dinner in Washington. Opportunities to indulge his tastes were not lacking. Every judge of the Supreme Court of the United States had to preside over a Federal circuit court twice a year, and the Southern Circuit fell to the Chief Justice. Marshall was accustomed to make the week’s journey from Richmond to Raleigh, alone, in a primitive sort of sulky, over terrible roads. He passed the nights at the poorest log-cabins, mingling with the people on terms of perfect equality, and at Raleigh seemed to prefer the worst tavern in the place. When court adjourned, the Chief Justice played quoits in the street with anyone who would give him a good game.

This game of pitching quoits at a peg was Marshall’s chief recreation. At Richmond he was the leading spirit of a jovial Quoit Club, which met in a grove on the outskirts. When past three-score years and ten, he would toss off a tumbler of mint julep, pitch quoits with the best players, and lose himself completely in the game. A jocose deference to his judicial office was paid by his fellow members, in making him the arbiter of disputed points. The Chief Justice was frequently to be seen on his knees in the dust, measuring with a straw the distance from a quoit to the peg, and biting off the straw for greater accuracy. When one quoit fell neatly on top of another, Marshall decided for the bottom one on the principle cuius solum, eius usque ad cœlum.

Marshall’s formal schooling was very slight: a few months at a primitive academy in Westmoreland County, and occasional tutoring from the parish minister. His parents were his best teachers. Thomas and Mary Marshall were no ordinary frontier people. Thomas had been assistant to George Washington when surveyor of the Fairfax estate, and with him used the wellstocked library of Lord Fairfax. He subscribed to the first American edition of Blackstone’s Commentaries, in 1722. Mary had been educated by her clergyman father.

The Marshalls brought few books to their mountain home, but they retained a firm grip on everything they had learned, and passed it on to their children. John Marshall inherited a taste for good literature, but he was never in any sense a bookish, or even, in the usual sense, a cultured man. Knowing no foreign language, not even Latin, he missed the broadening effect of the classics, and fell into the easy Virginia habit of relying on conversation rather than on books for general knowledge.

From his sixth to his twenty-sixth year the American Revolution entered vitally into Marshall’s education. His father represented Fauquier County almost every year in the Virginia Assembly. The frontier household was kept in touch with a legislative body where Patrick Henry, George Washington, and Thomas Jefferson were winning their first laurels in the patriot cause. John could probably discuss taxation and representation as intelligently as any boy in Boston or Philadelphia.

When the news of Lexington and Concord trickled into the Virginia wilderness, every young frontiersman was ready and willing to fight . John Marshall was elected lieutenant of a backwoods militia company. We have a pleasant description of him drilling and exhorting his troops — nineteen years old, over six feet tall, with raven-black hair and piercing dark eyes; armed with tomahawk and scalping-knife as well as rifle; ‘Liberty or Death’ (the only military insignia of officers and men) embroidered on his hunting-shirt. John and his father took part in the Battle of Great Bridge, the Virginia Bunker Hill. In July, 1776, they were commissioned lieutenant and major in the Third Virginia Regiment of the Continental Army.

When John Marshall received his commission, the ink was scarcely dry on the Declaration of Independence. Nationalism was still at white heat. Patrick Henry had exclaimed in the Continental Congress, ‘The distinctions between Virginians, Pennsylvanians, New Yorkers, and New Englanders are no more. I am not a Virginian, but an American.’ Democracy was in the air. Thomas Jefferson had declared it ‘selfevident’ that ‘all men are created equal.’

Marshall entered the army a nationalist. Contact with officers from all parts of the Continent strengthened his nationalism. ‘I was confirmed,’ he afterwards wrote, ‘in the habit of considering America as my country, and Congress as my government.’ He also entered the army a frontiersman and a democrat. ‘I recollect,’ he wrote in later life, ‘the wild and enthusiastic notions with which my political opinions of that day were tinctured.’

But his democracy evaporated with the spirit of ’76. The weakness and inefficiency of Congress, the perverse unpreparedness and frequent cowardice of the militia, the obstructiveness and indifference of state politicians, was apparent to every thinking officer in the army. Marshall fought under Washington at the Brandywine, Germantown, and Monmouth, with bad equipment, scanty stores, and depleted ranks. He endured under Washington the privations of Valley Forge. All the time he was thinking, reflecting. What was the matter with America? Why did not people and politicians give adequate support to the noblest cause in human history? Army experience put the question. Political experience furnished the answer.

His active military career closed in 1779. The reduction of the Continental Army, following the arrival of Rochambeau’s expeditionary force, left such an excess of officers that an honorable discharge came before another opportunity for active service. His furlough gave him an opportunity to visit his father, now promoted to colonel and stationed at Yorktown. The young officer’s praises had so often been sung by his father and brothers, that the belles of Yorktown were all of a twitter to meet him. Expecting a young Adonis faultlessly attired in the blue and red uniform of the Virginia line, the older girls were disappointed to find an awkward, shy, loose-jointed frontiersman, whose shabby and ill-fitting uniform hung on him as on a clothes-rack. But fourteen-year-old Mary Ambler, blessed with more penetration than her elders, calmly announced that she intended to win Captain Marshall. She already had won him!

Fourteen was too young for marriage, even in eighteenth-century Virginia, and Captain Marshall had his way to make. The spring of 1790 found him at William and Mary College, taking the law lectures of George Wythe. That was the only legal education, in the modern sense of the word, that the great Chief Justice ever received. But, such as it was, no better could be had in America. Wythe’s lectures antedated by at least two years the first law school in America — Judge Reeve’s at Litchfield, Connecticut; and the first permanent chair of law — at the University of Pennsylvania — was founded ten years later. All the great lawyers of the Revolutionary, and most of those of the Federalist, period were trained by reading law in the office of a successful practitioner.

A few months after this brief course, John Marshall was admitted to the bar of Fauquier County. For over a year he waited at his old home for clients who never came. The county then elected him to the House of Delegates at Richmond. There in 1783 he wedded Mary Ambler. She was seventeen; and her twenty-seven-year-old husband had only one guinea left to his name after paying the parson’s fee!

III

Richmond at the close of the Revolution had no suggestion of the respectable, well-built capital of the Southern Confederacy. One four-room tavern accommodated the legislators, and a barn-like wooden capitol housed their deliberations. Most of the white inhabitants were Scots merchants, men who had monopolized Virginia business before the Revolution, lost all their gains through the confiscatory acts, and returned hopefully for more. Their flimsy wooden houses straggled up the hill as if (Colonel Marshall suggested) they had been brought over by the Scots on their backs, and dropped at whatever point the owner’s strength gave out. In one of these two-room tenements the young couple set up housekeeping, with one slave presented by the colonel.

But young Marshall, with his usual sound judgment, had chosen the very place to make his living and reputation: a rapidly growing capital, where the best legal talent of the state was concentrated, and where a Wythe, a Carrington, and a Pendleton sat on the Supreme bench. ‘Great bars make great judges,’ observed the late John Chipman Gray. ‘Chief Justice Marshall would never have reached his summit alone, nor if his early legal associates had been a company of ignorant and pettifogging attorneys.'

The next fifteen years were the formative period of Marshall’s life, when the ideas suggested by his war experience became settled convictions. His immediate entrance into the State Legislature, he afterward wrote, revealed a slackness in administration, and conditions approaching anarchy in the organization of the government, which explained our inefficiency in the conduct of the war. ’The general tendency of State politics convinced me that no sage and permanent remedy could be found but in a more efficient and better organized General Government.’

Another young officer and lawyer, Alexander Hamilton, was making similar observations in the North, and reached the same conclusion. Thousands of propertied Americans were being taught in the same school of experience. But some startling event was necessary to spur them to action. That event was a popular uprising in Massachusetts.

Shays’s Rebellion proved an acid test of radical and conservative. The lifelong conflict of Jefferson and Marshall is foretold by their ‘reactions.’ Jefferson hoped we should never be twenty years without such a rebellion — and Jefferson almost had his wish. ’What country can preserve its liberties if their rulers are not warned from time to time that their people preserve the spirit of resistance? . . . The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants.’

Marshall’s comment is equally significant. ‘These violent, I fear bloody, dissensions in a state I had thought inferior in wisdom and virtue to no one in the union, added to the strong tendency which the politics of many eminent characters among ourselves have to promote private and public dishonesty, cast a deep shade over the bright prospect which the revolution in America and the establishment of our free governments had opened to the votaries of liberty throughout the globe. I fear, and there is no opinion more degrading to the dignity of man, that these have truth on their side who say that man is incapable of governing himself.’

These words were written at the age of thirty-one, and to General James Wilkinson, of all people! Marshall thereby announces his enrollment with the Federalists, the men who made it their task to bridle and tame the wild forces let loose by a revolution begun in the name of the rights of man.

The next year found Marshall a delegate to the Virginia Convention called to pass upon the new Federal Constitution. Already enough states had ratified to put it into effect; but an American Union without Virginia would have been like a League of Nations without America. In what are perhaps the most fascinating chapters in his book, Senator Beveridge describes at length the debates of the Convention; and seldom if ever in our history has debate been of such high quality and character. Virginia was suspicious of the Constitution. A snap vote at the opening session would have brought certain rejection. ‘Had the influence of character been removed, the intrinsic merits of the instrument would not have secured its adoption,’ Marshall afterwards wrote. The influence of Washington and Randolph, the patient arguments of Madison and Marshall, and, it must be added, some rather questionable manipulation, finally secured a majority of ten for the Union.

IV

When Washington was inaugurated, Marshall was in his thirty-fourth year. His mind was like an etcher’s plate ready for the acid bath. The lines were already scratched. Time and experience acted as a mordant to bite them in. Elsewhere, the waxy ‘ground’ of prejudice repelled new impressions. Belief in government for the people; distrust in government of or by the people; hatred of slackness, dishonesty, and disloyalty; love of orderly and efficient administration; belief in the sanctity of property rights and of contracts; a profound conviction that only a strong national government could curb the democratic and anarchical tendencies of the states — these were the principles that John Marshall held from the seventeen-eighties to the eighteenthirties. His political education was complete, for he was now receptive only to those teachings that confirmed and strengthened his opinions.

The next few years brought many such lessons. First the French Revolution, driving a ‘red-hot plowshare through our history.’ News of the great journées of 1792, and the war of all peoples against all kings, produced a hysterical enthusiasm which confirmed Marshall’s low opinion of popular wisdom. Then came word that made the Revolution a dividing line in American politics. War had begun between England and France, and Citizen Genet arrived to demand full execution of the treaty of alliance.

To one side of the furrow moved Washington, Hamilton, Marshall, and all who wished peace and ordered liberty; to the other moved Jefferson, Madison, the State of Virginia, and all who feared government more than they did anarchy. The party alignment which stood until 1815 was completed. To Marshall, as to all Federalists, French Jacobinism seemed dangerous to liberty and property in the same measure that Bolshevism threatens the standing order of to-day. Thomas Jefferson, on the contrary, ‘would have seen half the earth desolated’ rather than the failure of the Revolution. For him, the great danger to America was the financial entente with Britain, which he believed Hamilton had concluded. As Jefferson thought, so thought most plain Americans.

On Marshall, mainly, fell the hopeless task of defending Washington’s policy of neutrality in Washington’s native state. One would think that French equality, after the horrors of Santo Domingo, would have found few partisans in Virginia; but Virginia still deemed her social system invulnerable. Those ‘enthusiastic notions’ which Marshall had shed in the army were still prevalent. Virginia still owed more than two million pounds to British capitalists, and suspected the efforts of Hamilton to create an Amercian moneyed power. Consequently‘our distinguished anarchists,’ as Colonel Carrington called Jefferson and Madison, were able to swing a slave-owning aristocracy to the Jacobin cause. Jay’s treaty of 1794 completed their work. Washington reluctantly signed that humiliating document, as the alternative to war; but Virginia concluded, with Jefferson, that the hair of our American Samson had been ‘shorn by the harlot England.’

Here, again, Virginia’s opinion ran counter to her true interests. Jay’s treaty shifted the pre-war indebtedness of her planters onto the United States. Marshall was disgusted by this perverse attitude of his native state, and exasperated by the personal abuse to which his support of Washington exposed him. ‘Seriously,’ he writes a friend in 1794, ‘there appears to me every day to be more folly, envy, malice, and damn rascality in the world than there was the day before, and I do verily begin to think that plain downright honesty and unintriguing integrity will be kicked out of doors.’

The defense of Washington’s administration in Virginia was not wholly an ungrateful task. The President offered Marshall in succession the attorneygeneralship, the War Department, and the State Department. But Marshall’s family was growing, his law practice brought in the then enormous income of five thousand dollars a year, and his environment was congenial. Social ostracism was the penalty for political heresy in Federalist New England, but Virginia politics were not conducted with that fierce Puritan intolerance. Despite his Federalism, Marshall’s social and professional preëminence in Richmond was unquestioned. He occupied a comfortable brick house, entertained hosts of friends, and had no temptation to leave.

This formative period in Marshall’s opinions was also the acquisitive period in his education. During his active career at Richmond he gathered the knowledge from which his wisdom was expressed. For I wish, with a layman’s rashness, to put forth the opinion that Marshall was learned as well as brilliant in the law. Tradition has it otherwise, and Senator Beveridge accepts tradition. Marshall’s formal legal education amounted, as we have seen, to very little. But his hundred-page note to the case of Mandeville vs. Riddle, in 1803, for instance, shows a profound knowledge of both common and civil law. His great decisions on international law could not have been made without a thorough study of such books and precedents as existed. President Adams, after an interview with Marshall on the eve of his French mission, in 1797, wrote that his appointee was ‘learned in the law of nations.’ Senator Beveridge, who does not accept this opinion, imagines Marshall acquiring a cheap reputation by listening politely while the President expounded. But John Adams was never known to overrate the ability of anyone but an Adams. That a young Virginian, in particular, could have bluffed him on international law is unthinkable!

Marshall did not parade his learning. He acquired knowledge easily and quickly, digested everything that he read or heard, and by disciplined and systematic thinking was able to reach conclusions from data stored in the recesses of his memory, instead of having to consult indexes and the reports. As William Wirt wrote in 1806, his mind was an ‘inexhaustible quarry from which he draws his materials and builds his fabrics.’ His arguments and decisions flowed smoothly, without effort. Only the results appear. It is true that Marshall does not belong with his younger colleague, Story, in the first rank of legal scholars. His strongest intellectual points were his power of analysis, his faculty of close and logical reasoning, and his intuitive perception of justice. But these qualities alone would not have made him great. Men of intellect without knowledge have occasionally reached a higher place than Marshall’s. They have always been found out, sooner or later.

It was a mission to Paris that tested Marshall’s combination of sound knowledge and keen intellect. He was fortytwo years old when he accepted a commission from President Adams for the difficult and delicate task of adjusting our relations with the French Republic. Save for his army service and two brief visits to Philadelphia, he had never been out of Virginia. In contrast, the other two commissioners were older men, of wealth and wide experience. Charles Cotesworth Pinckney, of the famous Charleston family, had been educated at Westminister, Oxford, the Inns of Court, and Caen. Elbridge Gerry was a Harvard graduate, a political pupil of Samuel Adams, and an officer-holder since 1772. Yet the provincial Virginian not only eclipsed his colleagues, but carried off the honors in a clash with Talleyrand, the keenest diplomat of Europe.

Marshall kept the records of the negotiation, and drafted all the formal notes. These fully justify the President’s estimate of his ability. But, as John Quincy Adams remarked, European governments are ‘accustomed to reason so little, and so much to force, that a victory over them of mere logic is as easy as it is insignificant.’ The French Directory, irremovable at home and invincible abroad, was in no mood to negotiate on equal terms. Talleyrand believed that he could avoid an issue until the French spoliations destroyed our merchant marine, and Spain was forced to retrocede Louisiana. To gain time, he refused to receive the Americans officially.

In the meantime, Talleyrand sent the dubious trio best known as Messrs. X., Y., and Z., to play upon the fears of the envoys, and to sound their pockets. A bribe, a loan, and an apology for President Adams’s patriotism were demanded as prerequisites for the privilege of negotiating with Talleyrand. Pressed for an alternative, Monsieur Y. hinted at the power of the French party in America, and lightly touched upon the fate of sundry small nations which had defied or resisted the French Republic.

These importunities and threats made a deep impression on Elbridge Gerry, who had come to Paris obsessed with the idea of peace at any price. They did not in the least disturb Marshall. ‘Our case is different from that of the minor nations of Europe,’ he told Monsieur Y. ‘They were unable to maintain their independence and did not expect to do so. America is a great, and, so far as concerns her self-defense, a powerful nation.

It was Marshall, moreover, who discovered the weak spot in his adversary’s armor. France could not afford to risk a war which would force America into the arms of England. ‘No consideration would be sufficiently powerful to check the extremities to which the temper of this government will carry it, but an apprehension that we may be thrown into the arms of Britain,' wrote Marshall to General Washington at Mount Vernon.

Through the mist of language and intrigue, he had detected the vital spot of Talleyrand’s American policy. Talleyrand would go far, but not so far as to risk an alliance of America’s potential with Britain’s actual sea-power.

On this assumption, Marshall and Pinckney acted. After obtaining official assurance that an unneutral loan must precede any negotiation, they left Paris. Gerry, who fondly believed his presence necessary to prevent war, remained behind.

V

On his return to America, in June, 1798, John Marshall found himself a national figure. President Adams had published the X. Y. Z. despatches. Preparedness measures were being rushed through Congress, naval reprisals on French warships had already begun, a national spirit was fast growing. Marshall was escorted into Philadelphia by three troops of cavalry, and given a banquet at which ‘ Millions for defense, but not one cent for tribute,’ was first uttered. The President offered him a seat in the Supreme Court; but he preferred to return to his law practice.

The X. Y. Z. papers were the heaviest blows that were ever dealt Thomas Jefferson. From the moment of their disclosure dates his implacable enmity to Marshall. Jefferson, to be sure, had already condescended to note the dangerous abilities of his young cousin. He had once attempted to kick Marshall upstairs, into a seat on the Supreme Bench of Virginia; and, that failing, had attacked his character in private letters.

But the diplomacy of Marshall discredited the party which had based its foreign policy on the virtues of the French Republic. Jefferson was able to retrieve himself through the folly of the Federalists; but he never forgave Marshall those dark days of 1798, when his ablest lieutenants in Congress, shunned and despised like pro-Germans of 1918, had to slink home and kindle a backfire of State Rights. Marshall in return considered Jefferson a demagogue, a hypocrite, and a traitor. We must read Mr. Beveridge’s careful account of the Marbury case and the Burr Conspiracy to appreciate the influence of this mutual distrust on American history.

It now remained to be seen how the Federalists would use their diplomatic victory. They began by a costly war programme, based on the expectation that France would not only declare war, but attempt an invasion. Marshall, strangely enough, was partially responsible for this false assumption. Forgetting his Paris inspiration, he expressed the opinion, on his return, that France would declare war upon the publication of the despatches.² France, of course, did nothing of the sort. Talleyrand, fearing an Anglo-American entente, at once began conciliatory overtures which made an impression of sincerity on President Adams. In the meantime, the heavy taxes required to meet an invasion which never came furnished Jefferson with much-needed campaign material.

The X. Y. Z. mission deepened Marshall’s distrust of the French Revolution and of democracy. But, unlike most Federalist leaders, he did not let himself be stampeded into an antiJacobin crusade. He opposed a fatal move in political strategy, the Alien and Sedition acts of 1798. That attempt to deal with Jacobinism seems puny and half-hearted, in the light of the present anti-Bolshevist crusade. President Adams never expelled an alien. Less than a dozen offenders were brought to trial under the Sedition Act. The sentences were mild in comparison with those meted out by the Federal judiciary to-day. But the American Revolution was then too close for an American government to suppress free speech with impunity. Hamilton and Marshall both realized this, and the latter voted for the repeal of the acts. This brought him the abuse of the Essex Junto — the ‘hundred per-cent Americans’ of 1798. ‘The Virginia Federalists are little better than half-way Jacobins,’ wrote Benjamin Goodhue of Massachusetts.

A few months later John Adams made the discovery that Hamilton was jockeying for an opportunity to become the Bonaparte of America. The President dared to take upon himself the responsibility of peace with France, dared further to dismiss Hamilton’s supporters from the Cabinet, and to appoint Marshall, the ‘half-way Jacobin,’ Chief Justice of the United States. Through that appointment Adams intrenched in the Federal government the one enduring principle of the Federal party — the supremacy of national over local interests.

With his long and remarkable incumbency of the supreme judicial office we are not here concerned. We would only remind the student of his judicial career that there is no such thing as an abstract justice, insulated from the social conceptions of the judge. Underlying Marshall’s constitutional decisions were the settled beliefs matured by twenty years’ contact with men and revolutions. To the Supreme Bench he carried opinions which, until the end of his life, were at variance with those of the American people as a whole, and he did not hesitate to impose those opinions when he believed them to be consistent with law and justice.

Marshall considered himself a trustee of Washington’s nationalism, until such time as the popular heart should beat in harmony with the Farewell Address. The years have justified his steadfastness. Will they deal as gently with the efforts of his successors to embalm mid-nineteenth-century conceptions of property in our fundamental law?

1. The Life of John Marshall, by ALBERT J. BEVERIDGE, Boston: Houghton Mifflin Company. 1919. Four volumes. Illustrated.↩
2. Life and Correspondence of Rufus King, II, 543. George Cabot is our authority for the statement. He was astonished that Marshall ‘should have attributed to the French such miserable policy.’ The sage of Brookline had in some respects a more penetrating intellect than John Marshall’s; but he refused to place it at his country’s service. — THE AUTHOR.↩