This is not the place for any detailed consideration of Marshall’s
decisions. But it would be a strange omission to leave out all
consideration of what played so great a part in his life. I must draw,
therefore, upon the patience of the reader, while some points are
mentioned relating to that class of his opinions which is at once the
most important and of the widest interest, viz., those given in
constitutional cases. If these matters seem to any reader dull or
unintelligible, he must be allowed full liberty to pass them by; but I
cannot wholly omit them.
The keynote to Marshall’s leading constitutional opinions is that of
giving free scope to the power of the national government. These leading
opinions may be divided into three classes: _First_, such as discuss the
nature and reach of the Federal Constitution, and the general relation
of the federal government to the States. Of this class, McCulloch _v._
Maryland, probably his greatest opinion, is the chief illustration.
_Second_, those cases which are concerned with the specific restraints
and limitations upon the States. To this class may be assigned Fletcher
_v._ Peck, the bankruptcy cases of Sturgis _v._ Crowninshield and Ogden
_v._ Saunders, and Dartmouth College _v._ Woodward. _Third_, such as
deal with the general theory and principles of constitutional law. There
is little of this sort; except as it is incidentally touched, perhaps
the only case is Marbury _v._ Madison.
If we look at these great cases merely with reference to their effect
upon the history and development of the country, they are of the very
first importance. When one names Marbury _v._ Madison, the first case
where the Supreme Court held an act of Congress invalid, and the only
one in Marshall’s time; Fletcher _v._ Peck and Dartmouth College _v._
Woodward, where legislative grants and an act of incorporation are held
to be contracts, protected by the United States Constitution against
state legislation impairing their obligation; and New Jersey _v._
Wilson, holding that a legislative exemption from taxation is also a
contract protected in the same way;–one sees the tremendous importance
of the decisions.
Of coarse we are not to confound this powerful effect of a judgment, or
the moral approbation with which we may be inclined to view it, with the
intrinsic merit of the reasoning or the legal soundness of the
conclusions. It is not uncommon to speak of the reasoning in Marbury
_v._ Madison and Dartmouth College _v._ Woodward with the greatest
praise. But neither of these opinions is entitled to rank with
Marshall’s greatest work. The very common view to which I have alluded
is partly referable to the fallacy which Wordsworth once remarked upon
when a friend mentioned “The Happy Warrior” as being the greatest of his
poems. “No,” said the poet, “you are mistaken; your judgment is affected
by your moral approval of the lines.”
If we regard at once the greatness of the questions at issue in the
particular case, the influence of the opinion, and the large method and
clear and skillful manner in which it is worked out, there is nothing so
fine as the opinion in McCulloch _v._ Maryland, given at the February
term, 1819. The questions were, first, whether the United States could
constitutionally incorporate a bank; and, second, if it could, whether a
State might tax the operations of the bank; as, in this instance, by
requiring it to use stamped paper for its notes. The bank was sustained
and the tax condemned.
In working this out, it was laid down that while the United States is
merely a government of enumerated powers, and these do not in terms
include the granting of an incorporation, yet it is a government whose
powers, though limited in number, are in general supreme, and also
adequate to the great national purposes for which they are given; that
these great purposes carry with them the power of adopting such means,
not prohibited by the Constitution, as are fairly conducive to the end;
and that incorporating a bank is not forbidden, and is useful for
several ends. Further, the paramount relation of the national
government, whose valid laws the Constitution makes the supreme law of
the land, forbids the States to tax, or to “retard, impede, burden, or
in any way control” the operations of the government in any of its
instrumentalities.
This was the opinion of a unanimous court, in which five out of the
seven judges had been nominated by a Republican President. But it caused
great excitement at the South. On March 24, 1819, Marshall wrote from
Richmond to Judge Story: “Our opinion in the bank case has roused the
sleeping spirit of Virginia, if indeed it ever sleeps. It will, I
understand, be attacked in the papers with some asperity, and as those
who favor it never write for the public it will remain undefended, and
of course be considered as _damnably heretical_.” Again, two months
later, “The opinion in the bank case continues to be denounced by the
Democracy of Virginia…. If the principles which have been advanced on
this occasion were to prevail the Constitution would be converted into
the old Confederation.”
Another great opinion, of the same class, and also bitterly attacked,
was given in the case of Cohens _v._ Virginia, in 1821. This case came
up on a writ of error from a local court at Norfolk. Cohens had been
convicted of selling lottery tickets there, contrary to the statute of
Virginia. He had set up as a defense an act of Congress providing for
drawing lotteries in the city of Washington, and insisted that this
authorized his selling tickets in Virginia. When the case reached the
Supreme Court of the United States, the counsel for the State first
denied the jurisdiction of that court, on the ground, among others, that
the Constitution allowed no such appeal from a state court, and that the
Judiciary Act of 1789 was unconstitutional in purporting to authorize
it. In an elaborate opinion by Marshall, one of his greatest efforts,
these contentions were negatived. When afterwards, the case came to be
argued on the merits, the decision below was sustained, on the ground
that the act of Congress did not purport to authorize the sale of
tickets in any State which forbade the sale of them.
Here again the court was unanimous; and it was composed of the same
judges who decided McCulloch _v._ Maryland. But the reception of Cohens
_v._ Virginia at the South was even worse than that accorded the other
case. Judge Roane, of the Court of Appeals in Virginia, attacked the
opinion anonymously in the newspapers, with what Marshall called
“coarseness and malignity.” Jefferson, also, bitterly objected to it.
Of two other cases belonging in the same class of Marshall’s opinions,
viz., Gibbons _v._ Ogden, in 1824, and Brown _v._ Maryland, in 1827, it
is enough here to say that they deal with one of the most difficult and
perplexed topics of constitutional law, namely, the coördination of the
functions of the national and state governments, in regard to the power
granted to Congress to regulate foreign and interstate commerce, a
subject of great importance and difficulty, on which the decisions of
the Supreme Court are now and long have been involved in much confusion
and uncertainty. Gibbons _v._ Ogden brought into question the
constitutionality of a law of New York granting to Fulton, the inventor,
the sole right of navigating the waters of New York by steam. The grant
had been sustained by Chancellor Kent and by the New York Court of
Appeals; but these decisions were now overruled in a famous and powerful
opinion. In two other cases on this subject, also of great importance,
Marshall gave leading opinions. It may fairly be thought that his
treatment of the general question involved in these cases, instructive
as it was, was yet less fruitful and less far-seeing than in most of his
other great cases.
He was now in a region pretty closely connected with the second class of
cases, above named; a set of cases, where even so great a man as
Marshall erred sometimes, from interpreting too literally and too
narrowly the restraints upon the States. It was natural, in giving full
scope to the authority of the general government, that he should be
inclined to apply, with their fullest force and operation, these clauses
of restraint and prohibition. His great service to the country and his
own generation was that of planting the national government on the
broadest and strongest foundations. That, as he rightly conceived, was
the one chief necessity of his time. In doing this, when it came to
considering the reach that must also be allowed to the States, and just
how the coördination of the two systems should be worked out, probably
no one man, no one court, no human wisdom was adequate, then, to mapping
it all out. Time alone, and a long succession of men, after some ages of
experience, might suffice for that. The wisdom of those who made the
Constitution, as it has lately been said, was mainly shown “in the
shortness and generality of its provisions, in its silence, and its
abstinence from petty limitations.” But, as time went on, definitions
and specifications had to be made and applied; silence, abstinence,
generality, were no longer adequate. And in the class of cases, now
referred to, great and far-reaching as were the results of Marshall’s
labor, and unqualifiedly as they are often praised, one may perceive, as
I venture to think, a less comprehensive and statesmanlike grasp of the
problems and their essential conditions than are found in some other
parts of his work.
And so, when the Chief Justice, in 1812, held, without argument, that a
grant of land by a State, with a privilege of exemption from taxation,
contained a contract against future taxation, protected, even in the
hands of subsequent holders, by the constitutional provisions against
impairing the obligation of contracts, something was done which would
probably not be done to-day, if the question came up for the first time.
Certainly the soundness of the doctrine has been frequently denied by
judges of the Supreme court, and it has only survived through the device
of construing all grants in the narrowest manner. “Yielding,” says the
Court in a recent case, “to the doctrine that immunity from taxation
may be granted, that point being already adjudged, it must be considered
as a personal privilege, not extending beyond the immediate grantee,
unless otherwise so declared in express terms.” And again the court has
recently remarked on the “well-settled rule that exemptions from
taxation are … not to be extended beyond the exact and express
language used, construed _strictissimi juris_.”
Again, in Dartmouth College _v._ Woodward, in 1819, when it was held
that a legislative grant of incorporation was a contract protected by
the same clause of the Constitution, something was done from which the
court was subsequently obliged to recede in an important degree. Acts of
incorporation for the manufacture of beer, for carrying on
slaughter-houses, for dealing in offal, and for conducting a lottery,–a
reputable business in 1819, when the Dartmouth College case was
decided,–such acts as these have been treated by the Supreme Court as
not being thus protected. It is held that no legislative body can
contract to part with the full power to provide for the health, morals,
and safety of the community. Such things, it is said, are not the proper
subject-matter of legislative contract,–a doctrine which it has been
widely thought should, originally, have been applied to all acts of
incorporation. “The State,” says a distinguished judge, and writer on
constitutional law, in speaking of the Dartmouth College doctrine and
its development, “was stripped, under this interpretation, of
prerogatives that are commonly regarded as inseparable from sovereignty,
and might have stood, like Lear, destitute before her offspring, had not
the police power been dexterously declared paramount, and used as a
means of rescinding improvident grants.”[34]
In the great bankruptcy cases of Sturgis _v._ Crowninshield and Ogden
_v._ Saunders, where it was held, in 1819 and 1827, that the
constitutional provision as to impairing the obligation of contracts
forbade the State to enact an insolvency law which should discharge a
person from liability on a contract made before the law; and then again
that it did not forbid the same thing as touching a contract made after
the law, Marshall, who gave the opinion in the first case, put it on a
ground equally applicable to the second; and so, in the second case,
gave a dissenting opinion. The obligation of the contract, he said,
comes from the agreement of the party; it does not arise from the law of
the State at the time it was made, entering into or operating on the
contract. But this doctrine and this reasoning were justly disallowed.
Finally, in 1830, in Craig _v._ Missouri, Marshall gave the opinion that
certain certificates issued by a State in return for deposits, and
intended to circulate as money, were bills of credit; and as such
forbidden by the Constitution. There were three dissenting opinions; and
soon after Marshall’s death, a different doctrine was established by the
court,–wisely it would seem,–and has ever since been maintained.[35]
Coming now to the third class of cases mentioned above, that which
deals with the fundamental conceptions and theory of our American
doctrine of constitutional law, Marbury _v._ Madison is the chief case.
In speaking of that case I have purposely delayed until this point any
reference to this aspect of it. While, historically, this part of it is
what gives the case its chief importance, yet it occupies only about a
quarter of the opinion.
In outline, the argument there presented is as follows: The question is
whether a court can give effect to an unconstitutional act of the
legislature. This question is answered, as having little difficulty, by
referring to a few “principles long and well established.” (1) The
people, in establishing a written constitution and limiting the powers
of the legislature, intend to control it; else the legislature could
change the constitution by an ordinary act. (2) If a superior law is not
thus changeable, then an unconstitutional act is not law. This theory,
it is added, is essentially attached to a written constitution. (3) If
the act is void, it cannot bind the court. The court has to say what
the law is, and in saying this must judge between the Constitution and
the act. Otherwise, a void act would be obligatory; and this would be
saying that constitutional limits upon legislation may be transgressed
by the legislature at pleasure, and thus these limits would be reduced
to nothing. (4) The language of the Federal instrument gives judicial
power in “cases arising under the Constitution.” Judges are thus in
terms referred to the Constitution. They are sworn to support it and
cannot violate it. And so, it is said, in conclusion, the peculiar
phraseology of the instrument confirms what is supposed to be essential
to all written constitutions, that a law repugnant to it is void, and
that the courts, as well as other departments, are bound by the
constitution.
The reasoning is mainly that of Hamilton, in his short essay of a few
years before in the “Federalist.” The short and dry treatment of the
subject, as being one of no real difficulty, is in sharp contrast with
the protracted reasoning of McCulloch _v._ Maryland, Cohens _v._
Virginia, and other great cases; and this treatment is much to be
regretted. Absolutely settled as the general doctrine is to-day,
and sound as it is, when regarded as a doctrine for the
descendants of British colonists, there are grave and far-reaching
considerations–such, too, as affect to-day the proper administration of
this extremely important power–which are not touched by Marshall, and
which must have commanded his attention if the subject had been deeply
considered and fully expounded according to his later method. His
reasoning does not answer the difficulties that troubled Swift,
afterwards chief justice of Connecticut, and Gibson, afterwards chief
justice of Pennsylvania, and many other strong, learned, and thoughtful
men; not to mention Jefferson’s familiar and often ill-digested
objections.
It assumes as an essential feature of a written constitution what does
not exist in any one of the written constitutions of Europe. It does not
remark the grave distinction between the power of disregarding the act
of a coördinate department, and the action of a federal court in dealing
thus with the legislation of the local States; a distinction important
in itself, and observed under the written constitutions of Europe,
which, as I have said, allow this power in the last sort of case, while
denying it in the other.
Had Marshall dealt with this subject after the fashion of his greatest
opinions he must also have considered and passed upon certain serious
suggestions arising out of the arrangements of our own constitutions and
the exigencies of the different departments. All the departments, and
not merely the judges, are sworn to support the Constitution. All are
bound to decide for themselves, in the first instance, what this
instrument requires of them. None can have help from the courts unless,
in course of time, some litigated case should arise; and of some
questions it is true that they never can arise in the way of litigation.
What was Andrew Johnson to do when the Reconstruction Acts of 1867 had
been passed over his veto by the constitutional majority, while his veto
had gone on the express ground, still held by him, that they were
unconstitutional? He had sworn to support the Constitution. Should he
execute an enactment which was contrary to the Constitution, and so
void? Or should he say, as he did say to the court, through his
Attorney-General, that “from the moment [these laws] were passed over
his veto, there was but one duty, in his estimation, resting upon him,
and that was faithfully to carry out and execute these laws”?[36] And
why is he to say this?
Again, what is the House of Representatives to do when a treaty, duly
made and ratified by the constitutional authority, namely, the President
and Senate, comes before it for an appropriation of money to carry it
out? Has the House, under these circumstances, anything to do with the
question of constitutionality? If it thinks the treaty unconstitutional,
and so void, can it vote to carry it out? If it can, how is this
justified?
Is the situation necessarily different when a court is asked to enforce
a legislative act? The courts are not strangers to the case of political
questions, where they must refuse to interfere with the acts of the
other departments,–as in the case relating to Andrew Johnson just
referred to; and in dealing with what are construed to be merely
directory provisions of the Constitution; and with the cases, well
approved in the Supreme Court of the United States, where courts refuse
to consider whether provisions of a constitution have been complied
with, which require certain formalities in passing laws,–accepting as
final the certificate of the officers of the political departments. A
question, passed upon by those departments, is thus refused any
discussion in the judicial forum, on the ground, to quote the language
of the Supreme Court, that “the respect due to coequal and independent
departments requires the judicial department to act upon this
assurance.”
So far as any necessary conclusion is concerned, it might fairly have
been said, with us, as it is said in Europe, that the real question in
all these cases is not whether the act is constitutional, but whether
its constitutionality can properly be brought in question before a given
tribunal. Could Marshall have had to deal with this great question, in
answer to Chief Justice Gibson’s powerful opinion in Eakin _v._ Raub, in
1825,[37] instead of deciding it without being helped or hindered by any
adverse argument at all, as he did, we should have had a far higher
exhibition of his powers than the case now affords.[38]
I have drawn attention to the immense service that Chief Justice
Marshall rendered to his country in the field of constitutional law, and
have considered a few of the cases. Since his time not twice the length
of his term of thirty-four years has gone by, but more than five times
the number of volumes that sufficed for the opinions of the Supreme
Court during his period is required for those of his successors on the
bench. Nor does even that proportion indicate the increase in the
quantity of the court’s business which is referable to this particular
part of the law. It has enormously increased. When one reflects upon the
multitude, variety, and complexity of the questions relating to the
regulation of interstate commerce, upon the portentous and ever
increasing flood of litigation to which the Fourteenth Amendment has
given rise; upon the new problems in business, government, and police
which have come in with steam and electricity, and their ten thousand
applications; upon the growth of corporations and of wealth, the changes
of opinion on social questions, such as the relation of capital and
labor, and upon the recent expansions of our control over great and
distant islands,–we seem to be living in a different world from
Marshall’s.
Under these new circumstances, what is happening in the region of
constitutional law? Very serious things, indeed.
The people of the States, when making new constitutions, have long been
adding more and more prohibitions and restraints upon their
legislatures. The courts, meantime, in many places, enter into the
harvest thus provided for them with a light heart, and too promptly and
easily proceed to set aside legislative acts. The legislatures are
growing accustomed to this distrust, and more and more readily incline
to justify it, and to shed the consideration of constitutional
restraints,–certainly as concerning the exact extent of these
restrictions,–turning that subject over to the courts; and, what is
worse, they insensibly fall into a habit of assuming that whatever they
can constitutionally do they may do,–as if honor and fair dealing and
common honesty were not relevant to their inquiries.
The people, all this while, become careless as to whom they send to the
legislature; too often they cheerfully vote for men whom they would not
trust with an important private affair, and when these unfit persons are
found to pass foolish and bad laws, and the courts step in and disregard
them, the people are glad that these few wiser gentlemen on the bench
are so ready to protect them against their more immediate
representatives.
From these causes there has developed a vast and growing increase of
judicial interference with legislation. This is a very different state
of things from what our fathers contemplated, a century and more ago,
in framing the new system. Seldom, indeed, as they imagined, under our
system, would this great, novel, tremendous power of the courts be
exerted,–would this sacred ark of the covenant be taken from within the
veil. Marshall himself expressed truly one aspect of the matter, when he
said in one of the later years of his life: “No questions can be brought
before a judicial tribunal of greater delicacy than those which involve
the constitutionality of legislative acts. If they become indispensably
necessary to the case, the court must meet and decide them; but if the
case may be determined on other grounds, a just respect for the
legislature requires that the obligation of its laws should not be
unnecessarily and wantonly assailed.” And again, a little earlier than
this, he laid down the one true rule of duty for the courts. When he
went to Philadelphia at the end of September, in 1831, on that painful
errand of which I have spoken, in answering a cordial tribute from the
bar of that city he remarked that if he might be permitted to claim for
himself and his associates any part of the kind things they had said,
it would be this, that they had “never sought to enlarge the judicial
power beyond its proper bounds, nor feared to carry it to the fullest
extent that duty required.”
That is the safe twofold rule; nor is the first part of it any whit less
important than the second; nay, more; to-day it is the part which most
requires to be emphasized. For just here comes in a consideration of
very great weight. Great and, indeed, inestimable as are the advantages
in a popular government of this conservative influence,–the power of
the judiciary to disregard unconstitutional legislation,–it should be
remembered that the exercise of it, even when unavoidable, is always
attended with a serious evil, namely, that the correction of legislative
mistakes comes from the outside, and the people thus lose the political
experience, and the moral education and stimulus that come from fighting
the question out in the ordinary way, and correcting their own errors.
If the decision in Munn _v._ Illinois and the “Granger Cases,”
twenty-five years ago, and in the “Legal Tender Cases,” nearly thirty
years ago, had been different; and the legislation there in question,
thought by many to be unconstitutional and by many more to be
ill-advised, had been set aside, we should have been saved some trouble
and some harm. But I venture to think that the good which came to the
country and its people from the vigorous thinking that had to be done in
the political debates that followed, from the infiltration through every
part of the population of sound ideas and sentiments, from the rousing
into activity of opposite elements, the enlargement of ideas, the
strengthening of moral fibre, and the growth of political experience
that came out of it all,–that all this far more than outweighed any
evil which ever flowed from the refusal of the court to interfere with
the work of the legislature.
The tendency of a common and easy resort to this great function, now
lamentably too common, is to dwarf the political capacity of the people,
and to deaden its sense of moral responsibility. It is no light thing to
do that.
What can be done? It is the courts that can do most to cure the evil;
and the opportunity is a very great one. Let them resolutely adhere to
first principles. Let them consider how narrow is the function which the
constitutions have conferred on them,–the office merely of deciding
litigated cases; how large, therefore, is the duty intrusted to others,
and above all to the legislature. It is that body which is charged,
primarily, with the duty of judging of the constitutionality of its
work. The constitutions generally give them no authority to call upon a
court for advice; they must decide for themselves, and the courts may
never be able to say a word. Such a body, charged, in every State, with
almost all the legislative power of the people, is entitled to the most
entire and real respect; is entitled, as among all rationally
permissible opinions as to what the constitution allows, to its own
choice. Courts, as has often been said, are not to think of the
legislators, but of the legislature,–the great, continuous body itself,
abstracted from all the transitory individuals who may happen to hold
its power. It is this majestic representative of the people whose action
is in question, a coördinate department of the government, charged with
the greatest functions, and invested, in contemplation of law, with
whatsoever wisdom, virtue, and knowledge the exercise of such functions
requires.
To set aside the acts of such a body, representing in its own field,
which is the very highest of all, the ultimate sovereign, should be a
solemn, unusual, and painful act. Something is wrong when it can ever be
other than that. And if it be true that the holders of legislative power
are careless or evil, yet the constitutional duty of the court remains
untouched; it cannot rightly attempt to protect the people, by
undertaking a function not its own. On the other hand, by adhering
rigidly to its own duty, the court will help, as nothing else can, to
fix the spot where responsibility lies, and to bring down on that
precise locality the thunderbolt of popular condemnation. The judiciary,
to-day, in dealing with the acts of their coördinate legislators, owe
to the country no greater or clearer duty than that of keeping their
hands off these acts wherever it is possible to do it. For that
course–the true course of judicial duty always–will powerfully help to
bring the people and their representatives to a sense of their own
responsibility. There will still remain to the judiciary an ample field
for the determinations of this remarkable jurisdiction, of which our
American law has so much reason to be proud; a jurisdiction which has
had some of its chief illustrations and its greatest triumphs, as in
Marshall’s time, so in ours, while the courts were refusing to exercise
it.
No systematic attempt seems ever to have been made to collect Marshall’s
letters. It should be done. Only a few of his family letters have yet
found their way into print. One of them, to his wife, is quoted in a
previous page. In another to her, written on March 9, 1825, referring to
the inauguration of President John Quincy Adams, he says: “I
administered the oath to the President in the presence of an immense
concourse of people, in my new suit of domestic manufacture. He, too,
was dressed in the same manner, though his clothes were made at a
different establishment. The cloth is very fine and smooth.”
In a letter of December 7, 1834,[39] to his grandson, “Mr. John
Marshall, jr.,” he gives the boy some advice about writing which is a
good commentary on the extraordinary neatness and felicity, the close
fit, of his own clear, compact, and simple style:–
“The man who by seeking embellishment hazards confusion is greatly
mistaken in what constitutes good writing. The meaning ought never to be
mistaken. Indeed, the readers should never be obliged to search for it.
The writer should always express himself so clearly as to make it
impossible to misunderstand him. He should be comprehended without an
effort. The first step towards writing and speaking clearly is to think
clearly. Let the subject be perfectly understood, and a man will soon
find words to convey his meaning to others.”
A letter to James Monroe, dated Richmond, December 2, 1784, was written
while Marshall was a member of the House of Delegates. He writes: “Not a
bill of public importance, in which an individual was not particularly
interested, has passed. The exclusive privilege given to Rumsey and his
assigns to build and navigate his new invented boats is of as much,
perhaps more, consequence than any other bill we have passed. We have
rejected some which, in my conception, would have been advantageous to
this country. Among these I rank the bill for encouraging intermarriage
with the Indians. Our prejudices, however, oppose themselves to our
interests, and operate too powerfully for them….
“I shewed my father [then, probably, living in Kentucky] that part of
your letter which respects the western country. He says he will render
you every service of the kind you mention which is within his power with
a great deal of pleasure. He says, though, that Mr. Humphrey Marshall, a
cousin and brother of mine,[40] is better acquainted with the lands and
would be better enabled to choose for your advantage than he would. If,
however, you wish rather to depend on my father I presume he may avail
himself of the knowledge of his son-in-law. I do not know what to say to
your scheme of selling out. If you can execute it you will have made a
very capital sum; if you can retain your lands you will be poor during
life unless you remove to the western country, but you will have secured
for posterity an immense fortune. I should prefer the selling business,
and if you adopt it I think you have fixed on a very proper price.
“Adieu. May you be very happy is the wish of your
J. MARSHALL.”
* * * * *
In another letter to Monroe, while the latter was Madison’s Secretary of
State, dated Richmond, June 25, 1812, just as the war was beginning, he
says:–
“On my return to-day from my farm, where I pass a considerable portion
of my time in _laborious relaxation_, I found a copy of the message of
the President, of the 1st inst., accompanied by the report of the
Committee of Foreign Relations and the declaration of war against
Britain, under cover from you.
“Permit me to subjoin to my thanks for this mark of your attention my
fervent wish that this momentous measure may, in its operation on the
interest and honor of our country, disappoint only its enemies.
“Whether my prayer be heard or not, I shall remain with respectful
esteem,
“Your obedient servant,
“J. MARSHALL.”
* * * * *
When Marshall went to France as envoy in 1797, he wrote several long and
interesting letters to Washington, acquainting him with whatever foreign
intelligence might interest him.[41] The following passages from the
first letter, a very long one, will show the interest of these papers,
and the exactness of the information they convey:–
“THE HAGUE, 15th Sept., 1797.
“DEAR SIR,–The flattering evidences I have received of your favorable
opinion, which have made on my mind an impression only to wear out with
my being, added to a conviction that you must feel a deep interest in
all that concerns a country to whose service you have devoted so large
a portion of your life, induce me to offer you such occasional
communications as, while in Europe, I may be enabled to make, and induce
a hope that the offer will not be deemed an unacceptable or unwelcome
intrusion.
“Until our arrival in Holland we saw only British and neutral vessels.
This added to the blockade of the Dutch fleet in the Texel, of the
French fleet in Brest, and of the Spanish fleet in Cadiz, manifests the
entire dominion which one nation at present possesses over the seas. By
the ships of war which met us we were three times visited, and the
conduct of those who came on board was such as would proceed from
general orders to pursue a system calculated to conciliate America.
Whether this be occasioned by a sense of justice and the obligations of
good faith, or solely by the hope that the perfect contrast which it
exhibits to the conduct of France may excite keener sensations at that
conduct, its effects on our commerce are the same.
“The situation of Holland is truly interesting. Though the face of the
country still exhibits a degree of wealth and population still unequaled
in any part of Europe, its decline is visible. The great city of
Amsterdam is in a state of blockade. More than two thirds of its
shipping lie unemployed in port. Other seaports suffer, though not in so
great a degree. In the mean time the requisitions made upon them are
enormous. They have just completed the payment of the 100,000,000 of
florins (equal to 40,000,000 of dollars) stipulated by treaty; they have
sunk, on the first entrance of the French, a very considerable sum in
assignats; they made large contributions in specifics, and they pay,
feed, and clothe an army estimated, as I am informed, at near three
times its real number. It is supposed that France has by various means
drawn from Holland about 60,000,000 of dollars. This has been paid, in
addition to the natural expenditures, by a population of less than
2,000,000. Nor, should the war continue, can the contributions of
Holland stop here. The increasing exigencies of France must inevitably
increase her demands on those within her reach.
* * * * *
“The political opinions which have produced the rejection of the
Constitution, and which, as it would seem, can only be entertained by
intemperate and ill-informed minds, unaccustomed to a union of theory
and practice of liberty, must be associated with a general system which
if brought into action will produce the same excesses here which have
been so justly deplored in France. The same materials exist, though not
in so great a degree. They have their clubs, they have a numerous poor,
and they have enormous wealth in the hands of a minority of the nation.
On my remarking this to a very rich and intelligent merchant of
Amsterdam, and observing that if one class of men withdrew itself from
public duties and offices it would be immediately succeeded by another,
which would acquire a degree of power and influence that might be
exercised to the destruction of those who had retired from society, he
replied that the remark was just, but that they relied on France for a
protection from those evils which she had herself experienced. That
France would continue to require great supplies from Holland, and knew
its situation too well to permit it to become the prey of anarchy. That
Holland was an artificial country acquired by persevering industry, and
which could only be preserved by wealth and order. That confusion and
anarchy would banish a large portion of that wealth, would dry up its
sources, and would entirely disable them from giving France that
pecuniary aid she so much needed. That under this impression many who,
though friendly to the revolution, saw with infinite mortification
French troops garrison the towns of Holland, would now see their
departure with equal regret. Thus they willingly relinquished national
independence for individual safety. What a lesson to those who would
admit foreign influence into the United States!”…
The condition of affairs in Paris at that time is illustrated by the
fact that Marshall’s later letters, written from there, were not
signed; and that they allude to the action of himself and his associates
in the third person. Thus, writing from Paris, October 24, 1797, in the
character of an anonymous private American to an unnamed correspondent,
he says:–
“Causes which I am persuaded you have anticipated forbid me to allow
that free range of thought and expression which could alone apologize
for the intrusive character my letters bear. Having, however, offered
what I cannot furnish, I go on to substitute something else perhaps not
worth receiving….
“Our ministers have not yet, nor do they seem to think it certain that
they will be received. Indeed they make arrangements which denote an
expectation of returning to America immediately. The captures of our
vessels seem to be only limited by the ability to capture. That ability
is increasing, as the government has let out to hardy adventurers the
national frigates. Among those who plunder us, who are most active in
this infamous business, and most loud in vociferating criminations
equally absurd and untrue, are some unprincipled apostates who were born
in America. The sea rovers by a variety of means seem to have acquired
great influence in the government. This influence will be exerted to
prevent an accommodation between the United States and France, and to
prevent any regulations which may intercept the passage of the spoils
they have made on our commerce, to their pockets. The government, I
believe, is but too well disposed to promote their views.”
In a letter to Judge Peters, of Philadelphia, dated November 23, 1807,
just after the Burr trial, after thanking his correspondent for a volume
of “Admiralty Reports,” he has something to say of that case:–
“I have as yet been able only to peep into the book, not to read many of
the cases. I received it while fatigued, and occupied with the most
unpleasant case which has ever been brought before a judge in this or,
perhaps, in any other country which affected to be governed by laws;
since the decision of which I have been entirely from home. The day
after the commitment of Colonel Burr for a misdemeanor I galloped to the
mountains, whence I only returned in time to perform my North Carolina
circuit, which terminates just soon enough to enable me to be here to
open the court for the ancient dominion. Thus you perceive I have
sufficient bodily employment to prevent my mind from perplexing itself
about the attentions paid me in Baltimore and elsewhere. I wish I could
have had as fair an opportunity to let the business go off as a jest
here as you seem to have had in Philadelphia; but it was most deplorably
serious, and I could not give the subject a different aspect by treating
it in any manner which was in my power. I might, perhaps, have made it
less serious to myself by obeying the public will, instead of the public
law, and throwing a little more of the sombre upon others.”
