GIFT OF 
 JANE KoSATHER 
 
THE POLITICAL AND ECONOMIC 
 DOCTRINES OF JOHN MARSHALL 
 
1ST 
 
 
Frontispiece 
 
The Political and Economic 
 Doctrines of John Marshall 
 
 Who for Thirty-Four Years Was Chief 
 Justice of the United States. And Also 
 His Letters, Speeches, and Hitherto 
 Unpublished and Uncollected Writings 
 
 BY 
 
 JOHN EDWARD OSTER, A.M. LL.B. 
 
 *. .* * .* v . 
 
 NEW YORK 
 
 THE NEALE PUBLISHING COMPANY 
 1914 
 

 Copyright, 1914, by 
 THE NEALE PUBLISHING COMPANY 
 
 VAIL-BALLOU COMPANY 
 BINGHAMTON AND NEW YORK 
 
This book is respectfully dedicated to 
 OHIO NORTHERN UNIVERSITY 
 
 To the Faculty and President in grateful acknowledg 
 ment of the valued encouragement received from them, 
 who, by their teaching, caused me to become a lover of 
 learning, and do research work in Political Science. 
 
 898969 
 
CONTENTS 
 
 PAGE 
 
 PREFACE 7 
 
 CHAPTER I 
 IN MARSHALL S DAY NEW PROBLEMS WERE TO BE SOLVED . . . . n 
 
 CHAPTER II 
 
 THE LETTERS OF JOHN MARSHALL. To WASHINGTON JUDGE STORY 
 MONROE MADISON JEFFERSON GOVERNOR OF VIRGINIA 
 HENRY CLAY HENRY LEE DANIEL WEBSTER JOHN ADAMS 
 ALBERT GALLATIN JOSIAH QUINCY R. KING EDWARD 
 EVERETT RUFUS KING DUDLEY CHASE COLONEL PICKERING . 20 
 
 CHAPTER III 
 
 LETTERS TO MARSHALL FROM WASHINGTON FROM THOMAS JEFFER 
 SON FROM JOHN AMBLER FROM GOVERNOR ST. CLAIR . . . 193 
 
 CHAPTER IV 
 
 MISCELLANEOUS WRITINGS WILL EULOGY UPON His WIFE COM 
 MUNICATION ON WESTERN RESERVE . . 197 
 
 CHAPTER V 
 
 THE SPEECHES OF JOHN MARSHALL SPEECH ON THE CASE OF 
 THOMAS NASH EXPEDIENCY OF DIRECT TAXATION SPEECH IN 
 VIRGINIA CONVENTION, IST AND 20 SECS. OF 30 ARTICLE OF CONST. 
 UNDER CONSIDERATION ON DEATH OF WASHINGTON .... 225 
 
 CHAPTER VI 
 
 THE KERNEL OF MARSHALL S DECISIONS THE HOLDINGS THAT MADE """"" 
 HIM THE EXPOUNDER OF THE CONSTITUTION MARBURY V. MADI 
 SON 280 
 
 CHAPTER VII 
 
 THE DEATH OF CHIEF JUSTICE MARSHALL DIARY OF JOHN QUINCY 
 ADAMS 348 
 
 BIBLIOGRAPHY 350 
 
 INDEX 365 
 
c. 
 
 PREFACE 
 
 BY common consent the most notable and one of the most 
 statesmanlike figures in our whole judicial history is that of 
 John Marshall. No other name is comparable with his in fame 
 or honor in this singular field of statesmanlike judicial con 
 trol, a field of our own marking out and creation, a states 
 manship peculiar to our own annals. Marshall may be said to 
 have created for us the principles of interpretation that have 
 governed our national development. He created them like a 
 great lawyer, master of the fundamental conceptions that have 
 enlightened all great lawyers in the administration of law and 
 have made it seem in their hands a system of life, not a mere 
 body of technical rules ; he created them also like a great states 
 man who sees his way as clearly without precedent as with it to 
 those renderings of charter and statute that will vivify their 
 spirit and enlarge their letter without straining a single tissue 
 of the vital stuff of which they are made. 
 
 A thoughtful English judge has distinguished between those 
 extensions of the meaning of law by interpretation that are the 
 product of insight and conceived in the spirit of the law itself 
 and those that are the product of sheer will, of the mere de 
 termination that the law shall mean what it is convenient to 
 have it mean. Marshall s interpretations were the products 
 of insight. His learning was the learning of the seer, saturated 
 with the spirit of the law, instinct with its principle of growth. 
 No other method, no other principle, has legitimate place in a 
 system that depends for its very life upon its integrity, upon 
 the candor and good conscience of its processes, upon keeping 
 faith with its standards and its immemorial promises. 1 
 
 Our courts have stood the test, chiefly because John Marshall 
 presided over their processes during the formative period of 
 our national life. He was of the school and temper of Wash 
 ington. He read constitutions in search of their spirit and 
 purpose and understood them in the light of the conceptions 
 under the influence of which they were framed. He saw in 
 
 1 Woodrow Wilson, " Constitutional Government in U. S.," Columbia 
 Lectures, 1908, p. 158. 
 
 7 
 
8 PREFACE 
 
 them not mere negations of power, but grants of power, and he 
 reasoned from out the large political experience of the race as 
 to what those grants meant, what they were intended to accom 
 plish, not as a pedant but as a statesman ; and every generation 
 of statesmen since his day have recognized the fact that it was 
 he more than the men in Congress or in the President s chair 
 who gave to our federal government its scope and power. 
 The greatest statesmen are always those who attempt their 
 tasks with imagination, with a large vision of things to come, 
 but with the conscience of the lawyer also, the knowledge that 
 the law must be built, not wrested, to their use and purpose. 
 And so, whether by force of circumstance or by deliberate de 
 sign, we have married legislation with adjudication and look 
 for statesmanship in our courts. 2 Marshall fulfilled all re 
 quirements better perhaps than any other man of his day could 
 have done. 
 
 Professor Thayer, of Harvard, in his book on Marshall, 
 says : " 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." 
 Professor Beard in his book, " The Supreme Court and the 
 Constitution," says : " How are we to know what was the 
 intention of the f ramers of the constitution ? The only method 
 is to make an exhaustive search in the documents of the Con 
 vention, and in the writings, speeches, papers, and recorded 
 activities of its members. New material, printed or in manu 
 script, may be produced at any moment. This essay there 
 fore makes no claim to finality. It is designed to throw light 
 on the subject and to suggest ways in which more light may 
 be obtained." 3 More light is what is needed. John Marshall, 
 more than any other man, knew what the intention of the 
 f ramers of the Constitution was, therefore his point of view 
 is important. His decisions and his letters and his speeches 
 will show that intention to a greater degree than any other 
 source. In this volume I have endeavored to give the kernel 
 of his decisions, all the letters that could be obtained, and his 
 most important speeches. 
 
 For suggestions from time to time I cheerfully acknowledge 
 
 2 Wilson, " Constitutional Government in U. S.," p. 168. 
 
 3 Pages 15-16. 
 
PREFACE 9 
 
 my obligations to Professor Charles A. Beard, who also first 
 emphasized the importance of Marshall s letters; to Professor 
 Frank Goodnow, of the Columbia Law School ; to John Bas- 
 sett Moore, Professor of Law, Columbia Law School; to 
 William D. Guthrie, Professor of Constitutional Law, Col 
 umbia Law School, who also gave me valuable books on Con- 
 stutional Decisions, and to Professor William Dunning, Col 
 umbia University. 
 
 I give my thanks to the Librarian of the Congressional Li 
 brary at Washington, and especially to the Superintendent of 
 Documents in the Manuscript Division for his kindness in 
 giving me free access to the archives and files of manuscript 
 letters; to Professor Mills, Librarian of the Ohio State His 
 torical and Archaeological Society Library; to the Librarian 
 of Ohio State Library; to the attendants of the Toledo Public 
 Library; to the Librarian of the New York Public Library; 
 to the Librarian of the Columbia University Library, and es 
 pecially to Mr. Erb and his efficient and courteous assistants; 
 and to the Librarian of the Columbia Law School. 
 
 I have also received valuable aid from Arthur Murnen, Fae 
 John, John A. McGeever, of the Kentucky and Connecti 
 cut bars, and Mae C. R. Newshafer, who read copy, sug 
 gested names of persons who might have or know of letters, 
 and helped in the search for letters written by Chief Justice 
 Marshall. 
 
 JOHN EDWARD OSTER. 
 
 Columbia University, New York City, 
 June, 1914. 
 
CHAPTER I 
 
 IN MARSHALL S DAY NEW PROBLEMS WERE TO BE SOLVED 
 
 MARSHALL AN ACKNOWLEDGED LEADER OF THE 
 FEDERALISTS 
 
 NOT only, in the words of Chief Justice Waite, " were the 
 nation, the Constitution, and the laws in their infancy," but 
 a brand-new problem of political science was to be solved, 
 that is, whether or not it was possible to work successfully a 
 scheme contemplating the contemporaneous supremacy in 
 each of thirteen independent commonwealths of two govern 
 ments, distinct and separate in their action, yet commanding 
 with equal authority the obedience of the same people, so 
 that each in its allotted sphere should perform its functions 
 without impediment to or collision with the other. 1 Patrick 
 Henry, in the Virginia Convention, denounced " these two 
 coordinate, interfering, unlimited powers of harassing the 
 community " as " unexampled, unprecedented in history, the 
 visionary projects of modern politicians " and " a political sole 
 cism." For other gloomy forebodings and disastrous predic 
 tions by Patrick Henry see Elliot s Debates pp. 47-51, 58, 156, 
 325-328, 436, 546, 549. 
 
 This problem has been completely solved for us by the 
 experiences of a century. It has been so completely solved 
 that few Americans realize what Professor Bryce calls " that 
 immense complexity which startles and at first bewilders a stu 
 dent of American institutions." The solution depended in a 
 large measure upon the interpretation and enforcement of a 
 written constitution which, as Mr. Webster said in his 
 argument, and Judge Marshall repeated in his decision, in 
 Gibbons v. Ogden (9 Wheaton, p. 189), enumerated but did 
 not define the powers that it granted; and thus that scheme 
 assigned to the Supreme Court, as a co-ordinate department of 
 the national government, a part never before undertaken by 
 such a tribunal. Even if the Federal Constitution, when pro- 
 1 " Elliot s Debates," Vol. Ill, 2cl ed. 1836, p. 148. 
 
12 THE POLITICAL AND ECONOMIC 
 
 mitigated for adoption, had been accepted by all parties as 
 theoretically perfect, and its provisions as open to but one con 
 struction, still a bitter and all but fatal experience gave warning 
 of the dangers to be apprehended from the local and State 
 jealousies, the selfish interests, which were at best conflicting, 
 and which even during the struggle for independence had 
 brought the government of the Confederation into contempt. 2 
 
 At this time of its adoption there was no worship of the 
 Constitution. This worship was of a later growth. 3 Quoting 
 John Quincy Adams, Von Hoist says, " The historical fact is 
 that the Constitution had been extorted from the grinding 
 necessity of a reluctant people." Again he says : 
 
 " We are compelled to say with Justice Story that we ought 
 to wonder, not at the obstinacy of the struggle of 1787 and 
 1788, but at the fact that despite everything the Constitution 
 was finally adopted. The simple explanation of this is that 
 it was a struggle for existence, a struggle for the existence of 
 the United States." 
 
 The fierce though unsuccessful opposition to the adoption of 
 the Constitution, notably in the Massachusetts, New York, and 
 Virginia Conventions, shows what the frame of mind of the 
 people was at that time. John Marshall, then thirty-three 
 years old, but already a recognized leader of the Virginia 
 Bar, was an influential member of the Virginia Convention. 
 
 Marshall s speeches in the Virginia Convention in defense 
 of its provisions concerning taxation, the militia, and the 
 judiciary were very strong and able and carried much weight. 4 
 
 With the ratification of the Constitution on June 21, 1788, 
 by New Hampshire, the ninth State, followed by Virginia on 
 June 25, and New York on July 26, the Union under the Con 
 stitution became an accomplished fact. It was carried by 
 dangerously narrow majorities, in the New York Conven 
 tion by only 30 votes to 27 ; in that of Virginia by only 89 to 79, 
 and in that of Massachusetts by 187 against i68. 5 All evi 
 dence points to the fact that if it had been submitted to the vote 
 of the people it would have without a doubt received a death 
 blow. It would have been rejected by the people if left to 
 
 2 Story s " Comm. I on Const, of U. S." sec. 252-254. 
 
 3 Von Hoist s " Constitutional History of the United States," Vol. I, 
 pp. 68-75. 
 
 *3 Elliot s "Debates," 2d edition, 1836, pp. 222, 419, 551. 
 
 5 Fiske s " Critical Period of American History," pp. 331, 338, 344. 
 
DOCTRINES OF JOHN MARSHALL 13 
 
 popular vote, and by the conventions if a few great statesmen 
 had not put forth their best efforts in defending it. 6 
 
 John Marshall never sought public station, but often declined 
 it. His great popularity repeatedly charged him with its 
 duties. Early in 1782 he was elected to the Legislature, in 
 1783 he was chosen a member of the State Executive Council, 
 and he was again elected to the Legislature in 1784, in 1787, 
 from 1788 to 1792, and without his knowledge and against his 
 will in 1795. To this period, Mr. Justice Story tells us, is to 
 be referred the development of the political opinions and 
 principles that governed his subsequent life. 7 He himself 
 sums this up in a letter found on another page of this volume, 
 in which he says : " The general tendency of State politics 
 convinced me that no safe and permanent remedy could be 
 found but in a more efficient and better organized government," 
 and again : The questions which were perpetually recurring 
 in the State Legislatures . . . which proved that everything 
 was afloat, and that we had no safe anchorage ground, gave a 
 high value in my estimation to that article in the Constitution 
 which provides restrictions on the States." 
 
 In the Virginia Convention Patrick Henry, at the height of 
 his fame, led the attack upon the Constitution, seconded by 
 Grayson and Monroe and others advocating State sovereignty, 
 and opposed by Marshall, Madison, Pendleton, and other noted 
 men. The issue was in doubt during twenty-five days of keen 
 and heated debate. 
 
 To Henry s passionate denunciations of the new " consoli 
 dated government," as based on principles " extremely per 
 nicious, impolitic, and dangerous," by which " all pretensions 
 to human rights and privileges are rendered insecure, if not 
 lost," and to his strenuous objections to many of its provisions, 8 
 Marshall replied in three speeches, defending the provisions 
 of the Constitution concerning taxation, the militia, and the 
 judiciary, 9 This drew from Henry the tribute of his " highest 
 veneration and respect " and an acknowledgment of his " can 
 dor on all occasions." 10 
 
 6 Bryce, " The American Commonwealth," Vol. I, p. 223. 
 
 7 " Discourse," etc., Story s " Miscellaneous Writings," pp. 649, 651, 656- 
 8, 662-7. 
 
 8 Elliot s "Debates," Vol. Ill, p. 44. 
 
 9 Elliot s " Debates," Vol. Ill, pp. 222, 419, 551. 
 
 10 Elliot s " Debates," Vol. Ill, p. 578. 
 
I 4 THE POLITICAL AND ECONOMIC 
 
 In the debate of the Virginia Convention we cannot help but 
 note Marshall s view that under the Constitution, as proposed, 
 a State could not be sued by a citizen of another State. He 
 said : " It is not rational to suppose that the sovereign power 
 shall be dragged before a court. The intent is to enable States 
 to recover claims of individuals residing in other States." n 
 \In these debates it is also very interesting to notice his em- 
 Iphatic assertions of the right and duty of the Federal courts 
 to declare void a legislative act not warranted by the Consti 
 tution. 
 
 "If they were to make a law not warranted by any of the 
 
 i powers enumerated, it would be considered by the judges as 
 
 an infringement of the Constitution which they are to guard. 
 
 They would not consider such a law as coming under their 
 
 jurisdiction. They would declare it void." (" Debates," p. 
 
 1553.) 
 
 | During the political conflicts that followed the adoption of 
 the Constitution the personal influence, the courage, and the 
 great ability and talents of Marshall became very conspicuous. 
 The Anti-Federalists, under the leadership of Patrick Henry 
 and his friends, though almost defeated in the Convention, had 
 full control of the politics of Virginia; and, notwithstanding 
 the veneration felt for Washington and his unanimous elec 
 tion to the Presidency, in no state in the Union was his ad 
 ministration more harshly criticised than it was in Virginia. 
 He was censured in the Legislature as well as by the Demo 
 cratic Societies, which, modeled after the fashion of the 
 French Jacobin Clubs, started up all over the country. This 
 was in the year 1783. 
 
 Marshall did his best to withdraw from public life. Never 
 theless, regardless of his earnest desire, he soon found him 
 self an acknowledged leader of the Federalists, and prominent 
 in the discussion of national affairs. At that time there was 
 an abundance of exciting material on hand. The news of 
 the war between England and France in 1793, promptly re 
 sponded to by Washington s proclamation of neutrality, was 
 contemporaneous with the arrival of the new French Min 
 ister, Genet, whose audacious intrigues quickly bore fruit in 
 all kinds of international complications. The proclamation 
 was strenuously denounced, both as an ungrateful return for 
 11 Elliot s "Debates," III, p. 555. 
 
DOCTRINES OF JOHN MARSHALL 15 
 
 the assistance of France during our own Revolution, and as 
 an unconstitutional exercise of power by the President; and 
 the violence of partisan attacks upon the administration was 
 exceeded only by the virulence of the libels that charged Wash 
 ington with hatching out a plot by which he could make him 
 self a King. 12 
 
 At that time John Marshall in a bold manner defended the 
 proclamation, though because of his doing so he was denounced 
 as an aristocrat and an arch-enemy of republican principles. 
 
 However, at a meeting in Richmond he was successful in 
 carrying resolutions that approved the proclamation. The 
 ratification of Jay s treaty in 1795 added much fuel to the 
 flame. Bitterly denounced by the Republicans everywhere on 
 account of its commercial features as well as its alleged un- 
 constitutionality, it was so odious in Virginia that the friends 
 of Marshall, who, against his own remonstrance, had again 
 elected him to the Legislature, urged him for the sake of 
 his own influence, if not for his personal safety, to take no 
 part in the Legislative debates on that subject. 13 
 
 Resolutions had been adopted at a public meeting in Rich 
 mond, declaring the treaty " insulting to the dignity, injurious 
 to the interests, dangerous to the security, and repugnant to 
 the Constitution of the United States." John Marshall, with 
 characteristic courage, determined, as he afterward wrote, " to 
 make the experiment, however hazardous it might be." " A 
 meeting was called," he continues, " which was more numer 
 ous than I had ever seen at this place, and after a very ar 
 dent and zealous discussion which consumed the day, a de 
 cided majority declared in favor of a resolution that the wel 
 fare and honor of the United States required us to give full 
 effect to the treaty negotiated with Britain." Marshall even 
 compelled his opponents in the Legislature to abandon com 
 pletely their objections to the constitutionality of this treaty. 
 His argument on this occasion was of great power, an argu 
 ment that was admitted on all sides to be conclusive, and " the 
 fame of which spread through the Union, enhancing the esti 
 mate of his" character even with his political enemies." 14 
 
 12 " McMaster s History," Vol. II, pp. 96-107; 109-112. 
 
 13 " McMaster s History," Vol. II, pp. 221-230, and Story s " Discourse," 
 pp. 667, 668. 
 
 14 Story s " Discourse," p. 668. 
 
16 THE POLITICAL AND ECONOMIC 
 
 John Quincy Adams once said of his father that, if he had 
 done nothing else to deserve the approbation oi his country 
 and posterity, he might proudly claim it for the single act of 
 having made John Marshall Chief Justice of the United States ; 
 and, surely, Marshall stands out pre-eminently among the 
 many noble legal minds that have graced the Supreme Court as 
 the greatest of them all. " He was born," said William 
 Pinckney, " to be the Chief Justice of any country into which 
 Providence should have cast him." 
 
 Of the work of Marshall upon the bench many volumes 
 might be written ; but his decisions need no encomium ; they 
 speak for themselves. The Hon. E. T. Phelps, in an address 
 delivered before the American Bar Association, fittingly says 
 of the judgments of John Marshall : " Time has demon 
 strated their wisdom. They have remained unchanged, un 
 questioned, unchallenged. All the subsequent labors of that 
 high tribunal on the subject of constitutional law have been 
 founded on, and have at least professed and attempted to fol 
 low, them. There they remain. They will stand as long as 
 the Constitution stands ; and if that should perish, they would 
 still remain to display to the world the principles upon which 
 it rose, and by the disregard of which it fell." 
 
 . THE RELATIONSHIP BETWEEN JEFFERSON AND MARSHALL 
 
 An article written by the Hon. William A. Maury, formerly 
 Assistant Attorney-General of the United States, shows that 
 Jefferson and Marshall were related. In this article Mr. 
 Maury says : 
 
 " John Marshall, who solidified the Union ; and Thomas 
 Jefferson, who headed the reactionary movement against the 
 Constitution which set in so soon after its adoption and fi 
 nally culminated in the Civil War, and Robert E. Lee, who 
 drew his sword to force to their logical result the teachings of 
 Jefferson s pen, were all three descended from Col. William 
 Randolph of Turkey Island, the first of the name who emi 
 grated to Virginia, where he became the progenitor * of a 
 widespread and numerous race, embracing the most wealthy 
 families and many of the most distinguished names in Vir 
 ginia history. Marshall s mother, Mary Keith; Jefferson s 
 mother, Jane Randolph ; and Lee s grandmother, Mary Bland, 
 
DOCTRINES OF JOHN MARSHALL 17 
 
 were all three granddaughters of this William Randolph." 
 The relationship is clearly illustrated in the following dia 
 gram that is given by Mr. Maury : 
 
 Col. William Randolph, of Yorkshire, England, and "Turkey Island," 
 
 Virginia, married Mary, daughter of Henry and Catherine Isham, of 
 
 Bermuda Hundred, Virginia, 
 
 1 
 
 Thomas, 2d son 
 m. Fleming. 
 
 Mary, 3d child 
 m. Wm. Keith. 
 
 Mary Randolph Keith 
 m. Col. Thomas Mar 
 shall. 
 
 John Marshall. 
 
 Isham, 3d son 
 m. Jane Randolph, 
 
 Jane Raitdolph, 4th 
 child 
 m. Peter Jefferson. 
 
 Thomas Jefferson. 
 
 Elizabeth, gth child 
 m. Richard Bland. 
 1 
 Mary Bland 
 m. Henry Lee 
 
 Henry Lee 
 m. Lucy Grimes 
 1 
 Henry Lee 
 m. Anne Hill Carter. 
 
 Robert E. Lee. 
 
 If John Marshall had lived about fifty years later when 
 equal suffrage for women was first being discussed, he no 
 doubt would have been in favor of it, and probably he would 
 have been one of the champions to fight for the cause. Many 
 of his writings show that he had great regard for women and 
 their rights, and if they took part in any public event he was 
 sure in some way to express his appreciation of whatever they 
 did. 
 
 General Washington, while on his way from Mount Vernon 
 to New York to take upon himself the charge of the Govern 
 ment as President of the United States, on the 2ist of April, 
 1789, stopped at Trenton, where a reception was given to him. 
 In describing that entertainment Chief Justice Marshall wrote 
 as follows: 
 
 " At Trenton he was welcomed in a manner as new as it 
 was pleasing. In addition to the usual demonstrations of re 
 spect and attachment, which were given by the discharge of 
 cannon, by military corps, and by private persons of distinc 
 tion, the gentler sex prepared, in their own taste, a tribute of 
 applause indicative of the grateful recollection in which they 
 held their deliverance twelve years before from a formidable 
 enemy. On the bridge over the creek, which passes through 
 the town, was erected a triumphal arch, highly ornamented 
 
18 THE POLITICAL AND ECONOMIC 
 
 with laurels and flowers, and supported by thirteen pillars, 
 each entwined with wreaths of evergreens. On the front arch 
 was incribed in large gilt letters, 
 
 " THE DEFENDER OF THE MOTHERS WILL BE THE PROTECTOR 
 
 " On the center of the arch above the incription was a dome 
 or cupola of flowers and evergreens, encircling the dates of 
 two memorable events, which were peculiarly interesting to 
 New Jersey. The first was the battle of Trenton, and the 
 second the bold and judicious stand made by the American 
 troops at the same creek, by which the progress of the British 
 army was arrested on the evening preceding the battle of 
 Princeton. 
 
 " At this place he was met by a party of matrons leading 
 their daughters dressed in white, who carried baskets of flowers 
 in their hands, and sang with exquisite sweetness an ode of 
 two stanzas composed for the occasion : 
 
 " Welcome, mighty chief, once more 
 Welcome to this grateful shore; 
 Now no mercenary foe 
 Aims again the fatal blow ; 
 Aims at THEE the fatal blow. 
 
 "Virgins fair and matrons grave, 
 
 Those thy conquering arms did save, 
 Build for THEE triumphal bowers. 
 Strew, ye fair, his way with flowers, 
 Strew your Hero s way with flowers. " 
 
 The following communication was made to the ladies im 
 mediately afterward in writing: 
 
 " General Washington cannot leave this place without ex 
 pressing his acknowledgments to the matron and young ladies, 
 who received him in so novel and grateful a manner at the 
 triumphal arch in Trenton, for the exquisite sensations he ex 
 perienced in that affecting moment. 
 
 " The astonishing contrast between his former and actual 
 situation at the same spot, the elegant taste with which it was 
 adorned for the present occasion, and the innocent appear 
 ance of the white-robed choir, who met him with the gratu- 
 
DOCTRINES OF JOHN MARSHALL 19 
 
 latory song, have made such impressions on his remembrance, 
 as, he assures them, will never be effaced. " 
 
 The following lines, written but a few months after the 
 death of Chief Justice Marshall, were intended as an inscrip 
 tion for a cenotaph. They were written by Judge Story. 
 This is perhaps the most generous and affecting tribute of that 
 devoted associate, who mourned his loss, not as a friend only, 
 but as a brother, a tribute less to be valued on account of 
 any poetic beauty than as evidence of that warm affection 
 and that undying and reverential admiration which Story 
 never ceased to entertain for Marshall. 
 
 " To Marshall reared the great, the good, the wise, 
 
 Born for all ages, honored in all skies; 
 His was the fame to mortals rarely given, 
 
 Begun on earth but fixed in aim on Heaven. 
 Genius and learning and consummate skill, 
 
 Moulding each thought, obedient to will; 
 Affections pure as e er warmed human breast, 
 
 And love in blessing others doubly blest; 
 Virtue unspotted, uncorrupted truth, 
 
 Gentle in age, and beautiful in youth. 
 These were his bright possessions. These had power 
 
 To charm through life and cheer his dying hour. 
 All these are perished? No! but snatched from time 
 
 To bloom afresh in yonder sphere sublime. 
 Kind was the doom (the fruit was ripe) to die 
 
 Mortal is clothed with immortality." 
 
* CHAPTER II 
 
 THE LETTERS OF JOHN MARSHALL 
 
 THE place where each of these letters was found, or where 
 it is to be seen in print, is given except in the cases of those 
 that were copied from the originals in the Archives of the 
 Congressional Library. If no reference is given as to the 
 place where the original, or the copy, can be found, then it 
 is in the Congressional Library at Washington. 
 
 JOHN MARSHALL, ATTORNEY FOR S. B. 
 CUNNINGHAM. 
 
 A document in " The Calendar of Virginia State Papers," Vol. VII, pp. 
 
 IOI-IO2. 
 
 April 8, 1794. 
 
 I release two shillings per hundred on the tobacco for which 
 Samuel Baron Cunningham has obtained a judgment against 
 the Commonwealth, if no appeal be prosecuted thereon, but 
 if the appeal be prosecuted, then this release is to be of no 
 effect. 
 
 JOHN MARSHALL, 
 Att y for S. B. Cunningham. 
 
 The judgment obtained by Samuel Baron Cunningham 
 against the Commonwealth is only exceptionable in that part 
 of it which allows eighteen shillings per centum for the To 
 bacco lost ; in every other respect it appears to be founded on 
 the Decree of Court of the Appeals. 
 
 JAS. INNES, 
 pro republica. 
 
 LETTER i FROM J. MARSHALL TO JAMES WOOD, 
 
 LIEUTENANT-GOVERNOR 
 Applies for Arms for Richmond Militia 
 
 RICHMOND, April 25, 1794. 
 
 SIR: I am requested by several of the militia officers of 
 i " The Calendar of Virginia State Papers," Vol. VII, p. 120. 
 
 20 
 
DOCTRINES OF JOHN MARSHALL 21 
 
 this city to aid them in an application to the Executive for 
 arms for their several companies. 
 
 In support of this application, I beg leave to observe that 
 the possession of arms conduces exceedingly to the improve 
 ment of troops in the usual evolutions, and that it is hoped 
 and believed that the public could sustain neither inconven 
 ience or loss from placing muskets in the hands of the militia 
 of this place, as they can with great ease be re-collected should 
 the occasion require it, and as there is every reason to believe 
 that they would be kept safe and in good order. 
 
 I have, &c. 
 
 J. MARSHALL. 
 
 LETTER 2 OF J. MARSHALL TO THE GOVERNOR 
 
 Recommending Shelter for the Artillery 
 
 RICHMOND, May 2oth, 1794. 
 
 It is stated to me by Captain Quarrier that the field pieces in 
 his possession could be kept with great convenience and safety 
 was he permitted to erect a small house on or near the parade 
 ground which might protect them from the injuries they would 
 be exposed to if uncovered. As the ground has been fixed 
 on for the parade some distance out of town for general con 
 venience to the citizens, it will be difficult to remove the pieces 
 on every occasion from town to the place of meeting, and it is 
 hoped that the small expense (for it would not exceed sixty 
 dollars) of a house to cover the pieces might be usefully in 
 curred, the more especially as it might protect all the artil 
 lery at this place. 
 
 I am, &c. 
 
 J. MARSHALL. 
 
 LETTER FROM J. MARSHALL TO THE 
 
 GOVERNOR OF VIRGINIA 
 Relating to Arrest of the Ship Unicorn 
 
 SMITHFIELD, July 23d, 1794. 
 
 The troop reached this place yesterday morning, between 
 six & seven o clock. The ship Unicorn (the supposed priva 
 teer), was in possession of a company of the Isle of Wight 
 Militia, and the revenue cutter lay below her with a detach- 
 
 2 Ibid., p. 148. 
 
22 THE POLITICAL AND ECONOMIC 
 
 ment of militia from Norfolk, commanded by Capt. Wood- 
 side. 
 
 Every idea of resisting with violence the execution of the 
 laws, seems to have been abandoned. Immediately on my ar 
 rival, the Marshal made a peacable request on Capt. Sinclair 
 to allow his house to be searched for arms supposed to be 
 contained in it, which he did not hesitate to permit. 
 
 The search was made, and thirteen pieces of cannon, with 
 some ball, grape shot, and powder was found. There were 
 three pieces lying on the shore. A fatigue party is now em 
 ployed in getting them on board the Unicorn, after which the 
 cutter will conduct her to Bermuda hundred, or to Brodway. 
 I despatched a boat yesterday morning, to stop the vessel 
 which was proceeding down James River with the companies 
 of artillery & Infantry from Richmond, and directed their re 
 turn. I also ordered Capt. Weisiger to return with the in 
 fantry of Prince George, but as the marshal entertains some 
 apprehensions of an attempt to rescue the vessel in the river, 
 I thought it advisable to countermand the orders I had given, 
 & direct Capt. Weisiger to continue his march to this place, 
 with a view to his return in the Unicorn. 
 
 The situation both of Major Taylor & of the Marshal has 
 been arduous & unpleasant. The Marshal has received per 
 sonal insult, and seems not to have been free from personal 
 danger. Major Taylor has used great and proper exertions 
 to complete the business he was upon. He at first, expe 
 rienced great difficulty in procuring aid of any kind, but that 
 difficulty is now removed. Since the arrival of distant mil 
 itia, those of the country are as prompt as could be wished in 
 rendering any service required from them. Indeed, I am dis 
 posed to believe that the original difficulty rested not with the 
 men. 
 
 The privates (except those residing in Smithfield) have 
 manifested no disaffection to the Government, or reluctance 
 to support the laws. But of this, & of every circumstance 
 which has occurred, Major Taylor & the Marshal have taken 
 memoranda, & an ample report will be made to you as soon 
 as they shall return to Petersburg. 
 
 Captain Sinclair declares that he never designed to violate 
 the laws ; that the arms found in the house were not intended 
 for the Unicorn, but were purchased for a gentleman to the 
 
DOCTRINES OF JOHN MARSHALL 23 
 
 Southward; that the ball will not fit the cannon; and that 
 though she was originally designed for a privateer, the in 
 tention was changed so soon as the act of Congress prohibit 
 ing vessels to be armed in our ports was known ; in proof of 
 which he says that a cargo is now engaged for her. These, 
 however, are subjects proper to be discussed in court. 
 
 I am sorry to say that the Surveyor of the Port, who is 
 considered here as the informer, seems to entertain great ap 
 prehensions from some of those who considered themselves 
 as interested in this business. The vessel will, I trust, be ready 
 to sail tomorrow, and I shall then set out with the troops for 
 Richmond. 
 
 With very much respect, I am, &c. 
 
 J. MARSHALL. 
 
 LETTER * FROM J. MARSHALL TO THE 
 
 GOVERNOR OF VIRGINIA 
 Report of Circumstance Attending Arrest of the Ship Unicorn 
 
 RICHMOND, July 28th, 1794. 
 
 The troop of Cavalry ordered to Smithfield returned yes 
 terday. A longer time than I had counted on was necessary 
 to carry on board the different articles libeled, and to move 
 the Unicorn, and this has produced a delay more consider 
 able than was expected. She is now on her way to Bermuda 
 Hundred, guarded by Capt. Weisiger with his company of 
 Light Infantry, and attended by the Revenue Cutter. The ad 
 ditional expense of/ returning Capt. Weisiger s company in the 
 Unicorn is very inconsiderable, and is incurred at the request 
 of the Marshal who did not think her safe unless guarded by 
 armed men. His apprehensions of a rescue seem to have 
 arisen in some measure from reports prevailing in Smithfield, 
 and received in a manner deserving some credit, tho not so 
 as to be testimony, but principally from the coldness and de 
 cision of Capt. Sinclair s character from the high degree of 
 irritation he manifested, and from the well known total in 
 ability of the Cutter to afford any effectual aid in case of at 
 tack. Captain Sinclair declares his perfect submission to the 
 laws, and avers that he had never meditated resistance to them. 
 There were, however, strong circumstances which might read- 
 
 3 " The Calendar of Virginia State Papers," Vol. VII, pp. 234-235, 
 
24 THE POLITICAL AND ECONOMIC 
 
 ily induce an opinion that violence was contemplated. The 
 night after the Unicorn was seized, persons were heard for a 
 considerable time loading firearms in the house of Captain 
 Sinclair. The drawing of iron ramrods, and ramming down 
 the charge were distinctly heard. When the search was ap 
 plied for, which I mentioned in my former letter, he gave a 
 list of the arms in his possession, and among them were fifteen 
 muskets. These were found all charged. The situation of 
 the house is such as completely to command the Deck of the 
 vessel. I do not think that one hundred men placed in the 
 vessel could have protected her ten minutes from fifteen placed 
 in the house, and at this time, notwithstanding the applica 
 tion to Colonel Wells, and the exertions of Major Taylor and 
 the Marshall in Smithfield, only a guard of six or seven badly 
 armed men had been raised. 
 
 Captain Sinclair says that the only resistance he ever con 
 templated was against an unauthorized attempt, which he un 
 derstood was to be made to search his house. This may be 
 the fact, but it would scarcely seem to be so, since it was un 
 known to him that the only search ever designed was under 
 the warrant of a magistrate, which was applied for, but not 
 obtained. This circumstance, added to the evidence that the 
 vessel had been designed for a privateer, did, I own, make 
 such an impression on me, that I should, had the Marshall 
 requested it, increased the guard. 
 
 I had, while in Smithfield, frequent conversations with indi 
 viduals of the Isle of Wight. So far as I can judge of their 
 sentiments from their expressions, I am persuaded that they 
 feel no inconsiderable degree of mortification that a necessity 
 should exist for calling militia from a distance to their neigh 
 borhood, to protect from violence the laws of our country, 
 and I am persuaded too that this sentiment will so affect 
 the commanding officers as to secure more activity from 
 them on any future occasion than has been exhibited on 
 this. 
 
 They seem not to have been sufficiently impressed with the 
 importance of maintaining the sovereignty of the law; they 
 seem not to have thought it a duty of strong and universal 
 obligation to effect this object, but I do believe that a more 
 proper mode of thinking is beginning to prevail. 
 
 The militia on duty have so acted as not to have produced 
 
DOCTRINES OF JOHN MARSHALL 25 
 
 among the citizens, so far as my information extends, a single 
 murmur. 
 
 The cheerfulness with which the troop submitted to labor 
 not usually imposed on Cavalry does them much honor. 
 
 It is with great regret I mention an accident which befel 
 one of the Prince George Infantry. The Unicorn almost 
 touched the land. The company from Prince George was on 
 board, and was ordered neither to go on shore, or to permit 
 any person from the shore to come on board the vessel. A 
 militia man who had stolen out attempted to return, and on 
 being hailed by the sentinel attempted to rush by him without 
 an answer. It was so extremely dark, that the person could 
 not be distinguished, and the sentinel at the same time pushed 
 with his bayonet and attempted to fire. The rain which had 
 fallen fortunately prevented the discharge of the musket, but 
 a dangerous wound was received from the Bayonet. Dr. 
 Crawford of the Richmond troop, with great humanity dressed 
 his wounds and attended him through the night, but could not 
 procure a probe to ascertain its depth. 
 
 I will send to you tomorrow an account of the monies ex 
 pended by me on the expedition. 
 
 With very much respect & esteem, &c. 
 
 J. MARSHALL. 
 
 OPINION OF JOHN MARSHALL RELATING TO THE PUR 
 CHASE AND SALE OF LANDS FOR ARREARS OF TAXES 
 AND DUTIES 
 
 October I5th, 1794. 
 
 An agent appointed under the act for the more effectual 
 collecting certain arrears of taxes and duties, has purchased at 
 a sale made in pursuance of that law, a tract of land, which he 
 has since sold for a sum more considerable than he purchased 
 it, and it is inquired whether the surplus is a gain to the Com 
 monwealth, or ought to be credited to the sheriff. 
 
 The Act of Assembly is by no means explicit. It will admit 
 of either construction, and there is some weight in the argu 
 ment in favor of either. 
 
 The object of the Commonwealth is not to speculate, but 
 to secure the collection of debts due to itself. The purchase 
 of the agent, therefore, may be considered as a medium of col- 
 
26 THE POLITICAL AND ECONOMIC 
 
 lection. This idea derives aid from the clause directing the 
 agent to sell for specie commutables, or certificates, as the 
 arrears of taxes could or were to be discharged by law. It 
 would seem probable that a discretion would have been left 
 with the agent to have sold for either article as should be most 
 advantageous for the Commonwealth, if the product of the 
 sale was not to be credited to the sheriff. 
 
 But on the other hand, if the Sheriff should be credited 
 with the profits of the sale, he ought to be debited with the 
 loss. It is by no means certain that this would be the judg 
 ment of the court, for the act speaks of the purchase of the 
 agent as an absolute purchase, and not a mere substitution of 
 himself in the place of the acting sheriff for the sole purpose 
 of selling the property. The act too directs the amount of the 
 sale to be endorsed on the execution. This forms an im 
 mediate credit to the sheriff, and the law nowhere authorizes 
 a recharge of the deficiency, should one arise. 
 
 I am therefore of opinion, that the agent ought not to credit 
 the Sheriff for the proceeds of the sale made by himself, and 
 I give that opinion with the less reluctance, because should the 
 law be otherwise, the party can immediately bring it before 
 the court, and the Commonwealth will be assured on losing 
 the profit of this sale, that she is secure against loss on a future 
 occasion when the property may sell for less than the sum 
 given by the agent. 
 
 J. MARSHALL. 
 
 OPINION* OF JOHN MARSHALL RELATIVE TO FINES AND 
 PENALTIES UNDER THE MILITIA LAW 
 
 Ques. ist. Are those delinquent who have failed to obey 
 the requisition lately made on the Militia, liable to the fine 
 which is not to exceed one year s pay by the Federal law, & 
 also to ten dollars for not appearing at the place of rendezvous 
 by the State law ? 
 
 2nd. Are subjects or citizens of foreign powers liable to the 
 penalties from Militia laws? 
 
 Ans. ist. I rather incline to the opinion that the only fine 
 imposed by the Act of Congress ought to be collected. 
 
 The words of our Act of Assembly are general, and I have 
 4 " The Calendar of Virginia State Papers," Vol. VII, pp. 347-348. 
 
DOCTRINES OF JOHN MARSHALL 27 
 
 no doubt of the powers of the legislature to give additional 
 penalties for the breach of any law of the Union, but I rather 
 suppose the act of the Virginia Assembly would be construed 
 to apply to cases to which the Congressional Act could not 
 apply. 
 
 Ans. 2nd. I do not think the subjects or citizens of foreign 
 powers liable to the penalties of our Militia law. The Act of 
 Congress plainly excludes them from the Militia, and the Act 
 of Assembly is expressed to be enacted for the purpose of 
 carrying into effect the Militia system of the Union. 
 
 Oct. 1 6th, 1794. J. MARSHALL. 
 
 LETTER 5 FROM J. MARSHALL TO THE 
 GOVERNOR OF VIRGINIA 
 
 Sept. 1 3th, 1794. 
 
 I enclose you a statement made by the Captain of the Ar 
 tillery company of this town of the articles required for the 
 preservation or use of the artillery under his care. 
 
 I have, &c. 
 J. MARSHALL. 
 
 JOHN MARSHALL S OPINION THAT THE COMMISSION OF 
 ELISHA WHITE, SHERIFF OF HANOVER, IS FORFEITED 
 FOR FAILURE TO QUALIFY IN TIME 
 
 It is stated that Mr. White was commissioned as sheriff on 
 the 1 3th of August, 1794. 
 
 That the preceeding Sheriff continues in office till the 6th of 
 November so that the commission expresses that the power of 
 Mr. White is to commence on the 6th of November. 
 
 Several accidents prevented his giving bond and security 
 according to law within two months after the date of his com 
 mission, but in the third month he appeared in Court and of 
 fered to comply with the law. 
 
 It is enquired whether under these circumstances the court 
 ought to have received the bond, or whether the executive 
 ought to proceed to make another appointment. 
 
 The case of Mr. White is a hard one, but the law seems to 
 leave no discretion with the Executive to judge of those cir- 
 
 5 Ibid., p. 309. 
 
 6 " The Calendar of Virginia State Papers," Vol. VII, pp. 383-384. 
 
28 THE POLITICAL AND ECONOMIC 
 
 cumstances which shall dispense with a compliance with the 
 law. The law admits of no dispensation, but positively re 
 quires the execution of the bond within a limited time, or 
 directs a new commission to issue. The circumstances then 
 do not alter the case, but the sole question seems to me to be 
 whether the date of the commission in effect shall be con 
 sidered as the appointment. I think the date of the com 
 mission must be considered as the appointment because every 
 thing to be performed by the Executive is then completed. 
 
 J. MARSHALL. 
 
 THE OPINION ^ OF JOHN MARSHALL AS TO THE SALE OF 
 CRAIG S LAND 
 
 N. 
 
 December i8th, 1794. 
 
 The sale made by the sheriff, under the execution which was 
 levied in 1792, seems to me to be void in consequence of the 
 irregular procedure of that officer. He has in nothing obeyed 
 the law. If no provision was made for the case I should have 
 no hesitation in advising the sale of the land under the sec 
 ond execution, even although a verdict of the jury had been 
 rendered against the Commonwealth. But the 22nd section 
 of the 1 6th chapter of the Acts of 1792, which is copied from 
 the Act of 1787, directs the Auditor, when he shall suspect 
 fraud in the service of an execution, to make report thereof 
 to the Executive, whose duty it shall be to direct the Attorney 
 of the Commonwealth for the district, county, or corporation 
 to file an information thereupon, and if it shall appear that 
 the sale was fraudulent, the property shall not pass thereby. 
 
 In this case, the sale is in my opinion not only void through 
 its fraud, but its irregularity likewise. Yet as the irregularity 
 seems mingled with fraud, it may be most proper to pursue 
 the precise mode pointed out by the law. 
 
 J. MARSHALL. 
 
 The service of the execution vested the property in the 
 Sheriff, so that it became legally his for the purpose of satis 
 fying the execution. In my opinion it passes to his repre 
 sentative, who may and is bound to sell. The question how- 
 
 7 " The Calendar of Virginia State Papers," Vol. VII, pp. 403-404. 
 
DOCTRINES OF JOHN MARSHALL 29 
 
 ever came on before the last General Court, and was not de 
 cided. 
 
 J. M. 
 
 LETTER^ FROM JOHN MARSHALL TO THE GOVERNOR OF 
 VIRGINIA, RELATING TO THE CONTEST BETWEEN THE 
 COMMONWEALTH AND WILLIAM FAIRFAX 
 
 March 2nd, 1795. 
 
 The contest between the Commonwealth and Mr. Fairfax, 
 depending in the Court of Appeals, will come on of course for 
 decision at the next term. As I am not certain whether the 
 title of citizen purchasers may be considered as precisely the 
 same with that of Mr. Fairfax, I deem it incumbent on me as 
 the counsel of that gentleman, and hold it a duty to those 
 purchasers not to be dispensed with to assist their title. 
 
 I have therefore prepared the enclosed bill, which I am to 
 file in the Court of Chancery. As expedition seems to me to 
 be unquestionably the interest as well of the Commonwealth, as 
 of those who think their plain rights improperly suspended, 
 I take the liberty to enclose the bill to you, Sir, for your 
 perusal, with a hope that the officers of the Commonwealth 
 will be directed not to await the process of subpoenas and at 
 tachments, but to bring the question to a fair decision on its 
 merits at the next term. I should not venture, Sir, to make 
 this proposal if I did not suppose it to be the wish as well as 
 interest of the Government to have the Immediate use of the 
 property in contest if its title shall be good. 
 
 With, &c. 
 
 J. MARSHALL. 
 
 LETTER ^ FROM JOHN MARSHALL TO THE GOVERNOR OF 
 VIRGINIA, RELATING TO CERTAIN ARTICLES REQUIRED 
 BY THE CAPTAIN OF ARTILLERY OF RICHMOND 
 
 RICHMOND, Sept. I3th, 1794. 
 
 I enclose you a statement made by the Captain of the Ar 
 tillery company of this town of the articles required for the 
 preservation or use of the artillery under his care. 
 
 I have, &c. 
 J. MARSHALL. 
 
 8 " The Calendar of Virginia State Papers," Vol. VII, p. 446. 
 
 9 Ibid., p. 309. 
 
30 THE POLITICAL AND ECONOMIC 
 
 MEMORIAL^ TO THE GOVERNOR OF VIRGINIA, SIGNED BY 
 JOHN MARSHALL 
 
 The memorial of the inhabitants of Russell county to His Excellency 
 
 the Governor, and the Honorable Privy Council of Virginia, 
 
 March the nth, Anno Domini 1795 
 
 We beg leave to lay before your Honorable Body, our 
 unhappy situation, to whom alone we have reasons to hope 
 for relief. The season of the year is now approaching in 
 which we have reason to expect our frontiers to be invaded 
 by our avowed enemy, the Indians. Since the first settling 
 of our country we have not escaped their scourge for one year 
 without seeing our country laid waste, and our helpless women 
 and children a prey to their vindictive rage. It would be too 
 tedious for to call your attention to the number of us who has 
 experienced that never ending melancholy sight of returning 
 to our houses from our labours and finding our families lying 
 breathless, and yet bleeding from the scalping knives, until 
 our late Governor and council wisely, and happy for us, cov 
 ered our frontiers with their troops, known by the volunteer 
 militia, in the spring of 1792, and were continued to Decem 
 ber, 1794, during which time peace, in a great measure, blessed 
 our land, for by the vigilance of those troops, the approach of 
 the enemy were generally discovered, or if any of them by 
 any unavoidable accident got into the settlement undiscovered 
 and accomplished their perpetrated murders, never escaped 
 without rendering life for life and restoration of property. 
 Not hearing of the return of those troops, and the season 
 near at hand that we may expect to experience the unhappy 
 misfortunes too recent yet to many of us, tho prior to the 
 year 1792, we are induced to trouble your Board with this 
 memorial, hoping that, tho our situation is not personally 
 known by many of your Honorable Body, you will not lend a 
 deaf ear to us, nor put our lives in competition with money. 
 In a very short time the defenceless position of our frontiers 
 will be known to the enemy, on which we have every mis 
 fortune to dread. Experience has taught us by the many at 
 tempts that has been made to protect the frontiers, that none 
 has proved so effectual in procuring us peace as that of the 
 volunteer militia. 
 
 10 This letter was evidently not written by Mr. Marshall. See " Vir 
 ginia State Papers," Vol. VII, p. 45*- 
 
DOCTRINES OF JOHN MARSHALL 31 
 
 Hoping that your Excellency and the Honorable the Privy 
 Council will take us under immediate consideration and grant 
 a return of the same kind of troops, conducted by the same 
 officers, under whose protection we can put confidence, and 
 we in duty bound will ever pray. 
 
 CALEB FRILEY, JAMES DICKERSON, RICHARD LONG, JOHN 
 MORTON, HENRY DONNIGHE, OLIVER HUGHES, SILAS DELAN- 
 ARY, WM. SMITH, JOHN MARSHALL, JOHN FLANNARY, AND 
 OTHERS. 
 
 LETTER 11 FROM JOHN MARSHALL TO THE GOVERNOR OF 
 VIRGINIA, RELATING TO THE PUBLIC GUARD 
 
 RICHMOND, Sept. 23d, 1793. 
 SIR: 
 
 Your letter of the 2ist was delivered to me. I have 
 written to the officer of the Guard on the subject it relates to. 
 I take the liberty to state to you in that, if the Guard be con 
 tinued, it will be necessary to adopt some mode for supply 
 ing them with rations. This, I believe, may be effected with 
 out any other additional expense than the price of the pro 
 visions, & I am not certain that the ration will cost more than 
 the allowance to be made for it. It will also be necessary to 
 erect a sentry box to protect the Sentinel from inclement 
 weather. 
 
 With very much Respect, 
 I am, Sir, 
 
 Your Ob t Serv t. 
 
 J. MARSHALL. 
 
 LETTER 12 FROM JOHN MARSHALL TO THE GOVERNOR OF 
 VIRGINIA, ENCLOSING LETTER FROM J. MITCHELL EX 
 PRESSING FEARS OF NEGRO INSURRECTION 
 
 RICHMOND, September 24th, 1793. 
 SIR: 
 
 I take the liberty to enclose you a letter I have just re- 
 
 11 "Virginia State Papers (Calendar)," Vol. VI, p. 546. 
 Ibid., p. 547. 
 
32 THE POLITICAL AND ECONOMIC 
 
 ceived from Mr. Mitchell, & beg leave to suggest the propriety 
 of furnishing the Guard with cartridges. 
 
 With very much Respect, 
 
 I am, Sir, your Ob t Serv t. 
 
 J. MARSHALL. 
 
 LETTER FROM JOHN MARSHALL TO THE GOVERNOR OF 
 VIRGINIA, RELATING TO THE PUBLIC GUARD 
 
 RICHMOND, October 5th, 1793. 
 SIR: 
 
 I believe the officer of the Guard might contract with a 
 butcher for the rations necessary for the militia on duty. If 
 this be approved of, enquiry may immediately be made to as 
 certain the price at which the ration is to be procured. 
 I am, sir, with very much Respect, 
 
 Your Ob t Serv t. 
 
 J. MARSHALL. 
 
 SIR: 
 
 I enclose a pay-roll of the Company of Guards. The Ra 
 tions are not estimated. I will with pleasure give every aid 
 in my power to ascertain their value. I transmit also an ac 
 count of the officer of the Guard, which he prays the Hon ble 
 Executive to direct the payment of. 
 
 I am, with very much Respect, 
 
 Your Ob t Serv t. 
 
 J. MARSHALL. 
 
 LETTER i* FROM JOHN MARSHALL TO THE GOVERNOR OF 
 VIRGINIA, RELATING TO THE PHOENIX 
 
 October I5th, 1793. 
 SIR: 
 
 You have received the examination of the Captain of the 
 Phoenix, of a passenger, & of a boy belonging to her. Altho 
 every person on board seems healthy, she still appears to come 
 under the description of those vessels which ought to perform 
 quarantine, & I have some reasons for thinking so in addition 
 
 is " The Calendar of Virginia State Papers," Vol. VI, p. 581. 
 
 14 " The Calendar of Virginia State Papers," Vol. VI, pp. 600-601. 
 
DOCTRINES OF JOHN MARSHALL 33 
 
 to those afforded by the examination as transmitted to you. 
 The Captain swore that his vessel had not been in the Dela 
 ware for ten weeks before she sailed from Mil ford to Wil 
 mington, in order to clear out from Virginia. The boy swore 
 she was at Wilmington about a fortnight before she sailed 
 from Milford, at which place he left her, & came on board her 
 again at Milford. The Capt. swore she received her cargo 
 at Milford, & there is reason to believe this may be untrue, 
 as the boy came on board very soon after, and found her 
 laden at that time. The Captain too appeared very uneasy 
 at the examination of the boy, & seemed apprehensive that 
 something might escape him which would be unfavorable. He 
 said after the affidavit of the boy that when he said the vessel 
 had not been in the Delaware for ten weeks, he misunderstood 
 the question, & had supposed it related to his being at or near 
 Philadelphia. One of the crew was examined (not on oath) 
 by a gentleman of the city (Mr. Brown) from whom it ap 
 peared that the vessel had gone to Philadelphia after the boy 
 had left her at Wilmington. But admitting the statement of 
 the Captain to be perfectly true, it does not appear at what 
 time the young woman who is dead was last in Philadelphia, & 
 therefore she may have had the infection & have communi 
 cated it to others on board, who have not yet broke out with 
 it. I am imformed too by a Mr. Denny, to whom I believe 
 the vessel was consigned, that he received a letter by her from 
 one of the owners, dated Philadelphia, the 26th of September, 
 but one of the owners reside in Philadelphia & the other in 
 Wilmington. 
 
 I am very Respectfully, 
 
 Y r Ob t Servant, 
 
 J. MARSHALL. 
 
 GENERAL MARSHALL DECLINES TO ACT FOR COMMON 
 WEALTH AGAINST MARTIN S HEIRS 
 Letter 15 from Robert Brooke to the Governor of Virginia 
 
 I am informed by Mr. Thurston, Escheator for the County 
 of Frederic, that some time early in the last winter, it was ad 
 vised by the Executive that Gen. Marshall, Mr. Randolph, and 
 myself should advise him with respect to the claims of the Com 
 monwealth to the real estate of the late Bryan Martin, which 
 
 15 " The Calendar of Virginia State Papers," Vol. IX, p. 12. 
 
34 THE POLITICAL AND ECONOMIC 
 
 was by him devised for the benefit of aliens, and was supposed 
 upon that ground to be escheatable. I have upon the informa 
 tion of Mr. Thurston given him my opinion on the subject, but 
 Gen. Marshall considers himself engaged for Martin s family, 
 and I believe Mr. Randolph waits to hear from the Executive, 
 as he informed me he had no official communications on the 
 subject. 
 
 Mr. Thurston presses me very much to attend his inquest, 
 which is to be taken on the i6th of the next month at Winches 
 ter, but this I presume cannot be considered as making a part 
 of my ex-officio duty, nor could I comply with the request with 
 out incurring much expense and occasioning no inconsiderable 
 inconvenience. 
 
 I have the honor, &c. 
 
 LETTER^ FROM JOHN MARSHALL TO THE GOVERNOR OF 
 VIRGINIA, INFORMING HIM OF HIS APPOINTMENT AS 
 SECRETARY OF STATE OF THE UNITED STATES 
 
 ALEXANDRIA, June 7th, 1800. 
 
 Having been appointed by the President of the United States 
 to the office of Secretary of State, I am no longer a representa 
 tive in Congress of the District for which I was elected. 
 
 I should have sooner notified this vacancy to you had I been 
 certain that it would have existed. 
 
 With very much respect, I have, &c. 
 
 J. MARSHALL. 
 
 LETTER" FROM J. MARSHALL, CHIEF JUSTICE OF THE 
 UNITED STATES, TO THE GOVERNOR OF VIRGINIA, CON 
 CERNING A REPORTED INTENTION TO RESCUE LOG 
 WOOD, CONVICTED OF FELONY IN COURT OF UNITED 
 STATES 
 
 RICHMOND, May 31, 1804. 
 
 The intelligence you gave me respecting an intention to 
 rescue Logwood who is convicted of felony in the Court of the 
 United States would certainly have induced me to order a 
 guard for his security, if the laws had entrusted the Judge with 
 that power. 
 
 is "The Calendar of Virginia State Papers," Vol. IX, pp. 115-116. 
 
 17 Ibid., p. 399- 
 
DOCTRINES OF JOHN MARSHALL 35 
 
 But I find no act of Congress to that effect, and am therefore 
 not satisfied that I ought to exercise it. I think it most ad 
 visable that an application should be made to the Executive of 
 the United States on this subject, where alone the requisite 
 authority exists. 
 
 I am, &c. 
 J. MARSHALL. 
 
 LETTER is FROM JOHN MARSHALL TO GOVERNOR ST. CLAIR 
 
 DEPARTMENT OF STATE, WASHINGTON, 
 
 February 10, 1801. 
 SIR: 
 
 The President of the United States being desirous to avail 
 the public of a continuance of your services as Governor of the 
 Territory of the United States northwest of the Ohio River, I 
 have the pleasure of inclosing your commission, and of ex 
 pressing the sentiment of esteem with which 
 
 I am, sir, etc. 
 J. MARSHALL. 
 
 LETTER i FROM GOVERNOR ST. CLAIR TO 
 JOHN MARSHALL 20 
 
 CINCINNATI, August 5, 1800. 
 SIR: 
 
 I have been honored with your letter of the gth of June, 
 relating to the Connecticut Reserve, and also that of the I2th 
 of the same month, covering the act for dividing this Territory. 
 In pursuance of the first, a county has been erected, called 
 Trumbull, comprehending all the land contained within the 
 boundaries by which the reservation was made, when the 
 cession of the claim of Connecticut to western lands generally 
 was accepted by Congress. 
 
 In that country an unfortunate accident has happened 
 already, the killing of two Indian men and the wounding of two 
 children, O f which I received the account this Morning in a 
 letter from Colonel Hamyramck. The inclosed is a copy of it. 
 I shall send another to the Secretary of War. There has been 
 
 18 " The St. Clair Papers," by Wm. Henry Smith, p. 530. 
 
 19 Ibid., p. 497. 
 
 20 Secretary of State. 
 
36 THE POLITICAL AND ECONOMIC 
 
 for a considerable time past a great restlessness amongst the 
 Indian tribes, and some of them have been committing 
 depredations upon other tribes, and much appearances 
 that war between them should be enkindled, while others 
 have been stealing many horses from the white people, which is 
 a common prelude to hostilities. I am persuaded that if they 
 do not quarrel amongst themselves it will not be long that they 
 will be at peace with us ; to obviate, however, as much as pos 
 sible the ill effects of this present affair, I shall go to the county 
 of Trumbull immediately, and if the circumstances will justify 
 it, appoint a special court of oyer and terminer for the trial 
 of the person who is taken. 
 
 LETTER 21 FROM CHIEF JUSTICE MARSHALL TO 
 JOSIAH QUINCY 
 
 RICHMOND, April 23, 1810. 
 DEAR SIR: 
 
 Permit me to request that you will be so good as to charge 
 yourself with the enclosed letter to Rev. Mr. Eliot. 
 
 The Federalists of the South participate with their brethren 
 of the North in the gloomy anticipations which your late elec 
 tions must inspire. 22 The proceedings of the House of Repre 
 sentatives already demonstrate the influence of those elections 
 on the affairs of the Union. 
 
 I had supposed that the late letter to Mr. Armstrong, and 
 the late seizure of an American vessel, simply because she was 
 an American, added to previous burnings, ransoms, and confis 
 cations, would have exhausted to the dregs our cup of servility 
 and degradation ; but these measures appear to make no impres 
 sion on those to whom the United States confide their destinies. 
 To what point are we verging? 
 
 With very much respect and esteem, I am, Dear sir, your 
 obedient 
 
 J. MARSHALL. 
 
 21 " Life of Josiah Quincy," by Edmund Quincy, p. 204. 
 
 22 At the March elections Elbridge Gerry, the Democratic candidate, 
 had been chosen Governor of Massachusetts, and in New Hampshire John 
 Langdon had defeated Gov. Jeremiah Smith. 
 
 Edmund Quincy says: "The above letter from Chief Justice Marshall 
 shows how fully that eminent man shared in the anxieties and the fore 
 bodings of the Federal Party." 
 
DOCTRINES OF JOHN MARSHALL 37 
 
 LETTER 23 FROM CHIEF JUSTICE MARSHALL TO 
 JOSIAH QUINCY 
 
 About the time Josiah Quincy became the President of Har 
 vard College, Nathan Dane, illustrious for having drawn up 
 the Northwestern Ordinance, by which slavery was excluded 
 from the regions northwest of the Ohio River, founded the 
 professorship of law which bears his name, and Judge Story 
 was appointed the first professor. The next year Mr. Dane 
 advanced a sum of money sufficient to authorize the Harvard 
 Corporation to erect the building known as the Dane Law Col 
 lege. On the dedication of this building, in October, 1831, 
 Mr. Quincy delivered an address, which was published and 
 widely distributed. The following letter from Chief Justice 
 Marshall contains his testimony to the value of such a school 
 as one of the departments of a university. 
 
 RICHMOND, December 10, 1832. 
 
 DEAR SIR: 
 
 I am much indebted to you for the renewed proof of your 
 recollection given by sending me a copy of your address at the 
 dedication of Dane Law College. You have added to my 
 respect for that estimable gentleman, who has bestowed a 
 large portion of the acquisition of a valuable life on an institu 
 tion which promises to be so advantageous to the profession he 
 had adopted. I had not supposed that law was so negligently 
 studied in your country, whatever it may be in the South, as you 
 represented. But, however this may be, you satisfy me entirely 
 that it may be read with greatly increased benefit in an institu 
 tion connected with your University. I can very readily believe 
 that to disincorporate this particular science from general 
 knowledge is one great impediment to its advancement. The 
 vast influence which the members of the profession exercise in 
 all popular governments, especially in ours, is perceived by all ; 
 and whatever tends to their improvement benefits the nation. 
 I am, with great respect and esteem, your servant, 
 
 J. MARSHALL. 
 
 23 " Life of Josiah Quincy," by Edward Quincy, p. 443. 
 
38 THE POLITICAL AND ECONOMIC 
 
 LETTER 24 FROM JOHN MARSHALL TO ALBERT GALLATIN 
 
 RICHMOND, January 3, 1790. 
 DEAR SIR: 
 
 I have received yours of the 23d of December, and wish it 
 was in my power to answer satisfactorily your question con 
 cerning our judiciary system, but I was myself in the army 
 during that period concerning the transactions of which you 
 enquire, and have not since informed myself of the reasons 
 which governed in making those changes which took place 
 before the establishment of that system which I found on 
 my coming to the bar. Under the colonial establishment the 
 judges of common law were also judges of chancery; at the 
 Revolution these powers were placed in different persons. I 
 have not understood that there was any considerable opposition 
 to this division of jurisdiction. Some of the reasons leading to 
 it, I presume, were that the same person could not appropriate 
 a sufficiency of time to each court to perform the public business 
 with requisite despatch; that the principles of adjudication 
 being different in the two courts, it was scarcely to be expected 
 that the eminence in each could be attained by the same man ; 
 that there was an apparent absurdity in seeing the same men 
 revise in the characters of chancellors the judgments they had 
 themselves rendered as common-law judges. There are, how 
 ever, many who think that the chancery and common-law juris 
 diction ought to be united in the same persons. They are actu 
 ally united in our inferior courts; and I have never heard it 
 suggested that this union is otherwise inconvenient than as it 
 produces delay to the chancery docket. I never heard it pro 
 posed to give the judges of the general court chancery juris 
 diction. When tHe district system was introduced in 82, it was 
 designed to give the district judges the powers of chancellors, 
 but the act did not then pass, though the part concerning the 
 court of chancery formed no objection to the bill. When 
 again introduced it assumed a different form, nor has the idea 
 ever been revived. 
 
 The first act constituting a high court of chancery annexed a 
 jury for the trial of all important facts in the cause. To this, I 
 presume, we were led by that strong partiality which the citizens 
 
 2 * " Life of Albert Gallatin," by Henry Adams, pp. 81-83. 
 
DOCTRINES OF JOHN MARSHALL 39 
 
 of America have for that mode of trial. It was soon parted 
 with, and the facts submitted to the judge, with a power to 
 direct an issue wherever the fact was doubtful. In most 
 chancery cases the law and fact are so blended together that 
 if a jury was impanelled of course the whole must be sub 
 mitted to them, or every case must assume the form of a 
 special verdict, which would produce inconvenience and delay. 
 
 The delays of the court of chancery have been immense, 
 and those delays are inseparable from the court if the practice 
 of England be observed. But that practice is not necessary. 
 Tis greatly abridged in Virginia by an Act passed in 1787, and 
 great advantages result from the reform. There have been 
 instances of suits depending for twenty years, but under our 
 present regulations a decision would be had in that court as 
 soon as any other in which there were an equal number of 
 weighty causes. The parties may almost immediately set about 
 collecting their proofs, and so soon as they have collected them 
 they may set the cause on the court docket for a hearing. 
 
 It has never been proposed to blend the principles of common 
 law and chancery so as for each to operate at the same time in 
 the same cause; and I own it would seem to me to be very 
 difficult to effect such a scheme, but at the same time it must 
 be admitted that could it be effected it would save considerable 
 sums of money to the litigant parties. 
 
 I enclose you a copy of the act you request. I most sin 
 cerely condole with you on your heavy loss. Time only, aided 
 by the efforts of philosophy, can restore you to yourself. 
 
 I am, dear sir, with much esteem, your obedient servant, 
 
 J. MARSHALL. 25 
 
 25 The above letter appears in the Chapter on "The Legislature, 1789- 
 1801," in the "Life of Albert Gallatin," who was one of those persons 
 who thought the new Constitution went much too far. Henry Adams 
 says : " He would, doubtless, have preferred that all the great depart 
 ments, executive, legislative, and judicial, should have been more 
 closely restricted in their exercise of power, and that the President 
 should be reduced to a cypher." 
 
 "Gallatin seems to have been interested in an attempt to lessen the 
 difficulties growing from the separation of law and equity. On this sub 
 ject he wrote early to John Marshall for advice, and although the reply 
 has no very wide popular interest, yet, in- the absence of any collection of 
 Marshall s writings, this letter may claim a place here, illustrating, as it 
 does, not only the views of the future chief justice, but the interests and 
 situation of Mr. Gallatin." (P. 81, "Life of Gallatin," by Adams.) 
 
40 THE POLITICAL AND ECONOMIC 
 
 LETTER 26 FROM JUDGE MARSHALL TO ARTHUR LEE 
 
 RICHMOND, March 5, 1787. 
 DEAR SIR : 
 
 Your favour of the loth of January is now before me. I 
 have not sent the letter you enclosed me in search of Mr. Imlay, 
 because I am told by my brother, who is much better acquainted 
 with him than I am, that he either now is, or will very soon be 
 in New- York. 
 
 I have in my possession the notes you enquire for. I very 
 much fear that the conduct of some unthinking men in the 
 western country will embroil us with Spain, unless there be 
 some more vigorous interposition of government than we seem 
 disposed to make. A memorial signed by some of the most 
 respectable persons of Kentucky has lately been presented to 
 the governor on this subject, in which the conduct of Gen. 
 Clark, I am told, is a good deal criminated. Whether the 
 cession for a time of the navigation of the Mississippi would 
 conduce to the interest of the western country or not must 
 depend on facts of which I have but little information, and 
 therefore have never formed a decided opinion on the subject; 
 but the people of this as well as of the Kentucky country, who 
 seem to form no adequate ideas of the magnitude of danger 
 while at a distance, have pronounced upon it without hesita 
 tion. Mr. Henry, whose opinions have their usual influence, 
 has been heard to say that he would rather part with the Con 
 federation than relinquish the navigation of the Mississippi ; 
 but, as we have been fortiter in modo, I dare say we shall be 
 suaviter in re. 
 
 I congratulate you on the prospects of re-establishing order 
 and good government in Massachusetts. I think their govern 
 ment will now stand more firmly than before the insurrection, 
 provided some examples are made, in order to impress on the 
 minds of the people a conviction that punishment will surely 
 follow an attempt to subvert the laws and government of the 
 commonwealth. Our attention is now turned entirely towards 
 the next elections. The debtors as usual are endeavouring to 
 come into the assembly, and as usual I fear they will succeed. 
 
 I am, dear sir, with the highest esteem, your obedient 
 servant, J. MARSHALL. 
 
 Hon. Arthur Lee, Esq. 
 26 " Life of Arthur Lee," by R. H. Lee, Vol. II, pp. 321-322. 
 
DOCTRINES OF JOHN MARSHALL 41 
 
 LETTER 27 FROM CHIEF JUSTICE MARSHALL TO 
 HENRY CLAY 
 
 RICHMOND, April 4, 1825. 
 DEAR SIR: 
 
 I have received your address to your former constituents; 
 and, as it was franked by you, I presume I am indebted to you 
 for it. I have read it with great pleasure as well as attention, 
 and am gratified at the full and complete view you have given 
 of some matters which the busy world has been employing 
 itself upon. I required no evidence respecting the charge made 
 by Mr. Kremer, nor should I have required any had I been 
 unacquainted with you or with the transaction, because I have 
 long since ceased to credit charges destitute of proof, and to 
 consider them as mere aspersions. The minuteness of detail, 
 however, will enable your friends to encounter any insinua 
 tions on that subject which may be thrown out in their hearing. 
 More of this may be looked for than any hostility to you would 
 produce. There is unquestionably a party determined to 
 oppose Mr. Adams at the next election, and this party will at 
 tack him through you. It is an old, and has been a successful 
 stratagem. No part of your letter was more necessary than 
 that which respects your former relations with that gentleman. 
 
 LETTER 28 FROM CHIEF JUSTICE MARSHALL TO 
 HENRY CLAY 
 
 RICHMOND, January 5, 1828. 
 DEAR SIR: 
 
 I thank you for the copy of your address on the charges 
 made against you respecting the election of President, which I 
 have read with the more pleasure because it combines a body of 
 testimony much stronger than I had supposed possible, which 
 must I think silence even those who wish the charge to be 
 believed. 
 
 With sincere wishes for the improvement of your health, and 
 with real esteem, I am, 
 Dear sir, 
 
 Yours, etc., 
 
 J. MARSHALL. 
 
 27 " The Private Correspondence of Henry Gay," Colton, p. 121. 
 28 Ibid., p. 189. 
 
42 THE POLITICAL AND ECONOMIC 
 
 LETTER 29 FROM CHIEF JUSTICE MARSHALL TO 
 HENRY CLAY 
 
 RICHMOND, November 28, 1828. 
 MY DEAR SIR : 
 
 In consequence of my inattention to the post-office, I did not 
 receive your letter of the 23d till yesterday afternoon. I need 
 not say how deeply I regret the loss of Judge Trimble. He was 
 distinguished for sound sense, uprightness of intention, and 
 legal knowledge. His superior can not be found. I wish we 
 may find his equal. You are certainly correct in supposing 
 that I feel a deep interest in the character of the person who 
 may succeed him. His successor will, of course, be designated 
 by Mr. Adams, because he will be required to perform the most 
 important duties of his office, before a change of administration 
 can take place. 
 
 Mr. Crittenden is not personally known to me, but I am well 
 acquainted with his general character. It stands very high. 
 Were I myself to designate the successor of Mr. Trimble, I do 
 not know the man I could prefer to him. Report, in which 
 those in whom I confide concur, declares him to be sensible, 
 honorable, and a sound lawyer. I shall be happy to meet him 
 at the Supreme Court as an associate. The objection I have to 
 a direct communication of this opinion to the President arises 
 from the delicacy of the case. I can not venture, unasked, to 
 recommend an associate justice to the President, especially a 
 gentleman who is not personally known to me. It has the 
 appearance of assuming more than I am willing to assume. I 
 must, then, notwithstanding my deep interest in the appoint 
 ment, and my conviction of the fitness of Mr. Crittenden a 
 conviction as strong as I could well feel in favor of a gentleman 
 of whom I judge only from a general character decline 
 writing to the President on the subject. 
 
 LETTER^ FROM CHIEF JUSTICE MARSHALL TO 
 HENRY CLAY 
 
 RICHMOND, May 7, 1832. 
 DEAR SIR: 
 
 On my return to this place, from a visit to my friends in our 
 
 29 " The Private Correspondence of Henry Clay," by Colton, p. 212. 
 so Ibid., p. 339. 
 
DOCTRINES OF JOHN MARSHALL 43 
 
 upper country, I had the pleasure of receiving your report on 
 the public lands, which I have read with attention. The subject 
 is of immense interest, and has long produced and is still pro 
 ducing great excitement. 
 
 My sentiments concur entirely with those contained in the 
 report, which are so clearly and so well expressed that it must, 
 I think, be approved by a great majority of Congress. Una 
 nimity is not to be expected in anything. 
 
 I thank you for this mark of attention, and am with great and 
 respectful esteem your obedient servant, 
 
 J. MARSHALL. 
 
 LETTER si FROM CHIEF JUSTICE MARSHALL TO 
 HENRY CLAY 
 
 WASHINGTON, March 13, 1833. 
 DEAR SIR: 
 
 My nephew, Marshall Jones purposes to remove to New 
 Orleans with a view to the practice of the law, and is, I believe, 
 now in that place. The circumstances under which he left 
 Virginia increase my solicitude for his success. A personal ren 
 counter with a young gentleman who had abused him wantonly 
 and grossly terminated very unfortunately in the death of his 
 adversary. This compelled him to fly from Virginia and from 
 very flattering professional prospects. After visiting Canada 
 and Texas, he has at length, I am told, determined on trying 
 his fortune in New Orleans. I am extremely desirous of pro 
 moting his object, but with the exception of Mr. Johnston, am 
 not acquainted with a single individual in that place. May I 
 ask the favor of you to mention him to some of your friends, 
 not as a person known to yourself, but as my friend and relation 
 whom I strongly recommend. I have the most entire confi 
 dence in his honor, integrity, and amiable qualities; and shall 
 feel myself greatly obliged by your bestowing on him so much 
 of your countenance as may favor his introduction into society 
 and his professional exertions. For the rest, he must depend 
 upon himself. With great respect and esteem, I am, dear sir, 
 your obedient servant, 
 
 J. MARSHALL. 
 
 3i Ibid., pp. 352-353- 
 
44 THE POLITICAL AND ECONOMIC 
 
 LETTER FROM JOHN MARSHALL, SUBSEQUENTLY CHIEF 
 JUSTICE OF THE UNITED STATES, TO JAMES IREDELL 
 
 RICHMOND, Dec. i5th, 96. 
 DEAR SIR: 
 
 I had not the pleasure of receiving till yesterday your favor 
 of the 3d instant. Since then, I have seen the votes of North 
 Carolina, and you, I -presume, those of Virginia. Mr. Adams 
 would have received one other vote had Mr. Eyre really been 
 elected, but he was left out by accident. There was supposed to 
 be no opposition to him, and in consequence of that opinion the 
 people in one county, on the eastern shore, did not vote at all, 
 and in the other a very few assembled. On the day of election 
 the people of Princess Ann, whose Court day it happened to be, 
 
 assembled in numbers, and elected Mr. , who voted for 
 
 Mr. Jefferson. From that gentleman you will have heard there 
 were twenty votes for Mr. Samuel Adams, fifteen for Mr. 
 Clinton, three for Burr, Gen. Washington one, Mr. Pinckney 
 one, and Mr. John Adams one. I received a letter from Phila 
 delphia, stating that five votes south of the Potomac would be 
 necessary to secure the election of Mr. Adams. It is then 
 certain that he cannot be elected. Our assembly, which you 
 know is in session, displays its former hostility to federalism. 
 They have once more denied wisdom to the administration of 
 the President, and have gone so far as to say in argument, that 
 we ought not by any declarations to commit ourselves, so as to 
 be bound to support his measures as they respect France. To 
 what has America fallen ! Is it to be hoped that North Car 
 olina will, in this particular, rather adopt such measures as have 
 been pursued by other States, than tread the crooked paths of 
 Virginia? 
 
 I have received a letter from Mr. Dallas, and will furnish him 
 with my argument in the case of the British debts. I expect to 
 be under the necessity of getting the opinions of the Judges, 
 except yours, from Mr. Dallas, whose report of the case will 
 be published before mine. 
 
 With very much respect and esteem, 
 I am, dear sir, 
 
 Your Obed t j. MARSHALL. 
 
 32 "Life and Correspondence of James Iredell, One of the Associate 
 Justices of the Supreme Court of the United States," by Griffith J. Mc- 
 Ree, Vol. II, pp. 482-483. 
 
DOCTRINES OF JOHN MARSHALL 45 
 
 LETTER 33 FROM CHIEF JUSTICE MARSHALL ADDRESSED 
 TO THE REV. R. R. CURLEY, SECRETARY OF THE AMER 
 ICAN COLONIZATION SOCIETY 
 
 RICHMOND, Dec. 14, 1831. 
 DEAR SIR: 
 
 I received your letter of the 7th, in the course of the mail, but 
 it was not accompanied by the documents you mention. 
 
 I undoubtedly feel a deep interest in the success of the 
 Society, but, if I had not long since formed a resolution against 
 appearing in print on any occasion, I should now be unable to 
 comply with your request. In addition to various occupations 
 which press on me very seriously, the present state of my family 
 is such as to prevent my attempting to prepare anything for 
 publication. 
 
 The great object of the Society, I presume, is to obtain 
 pecuniary aid. Application will undoubtedly be made, I hope 
 successfully, to the several State Legislatures by the societies 
 formed within them respectively. It is extremely desirable 
 that they should pass permanent laws on the subject, and the 
 excitement produced by the late insurrection makes this a favor 
 able moment for the friends of the Colony to press for such 
 acts. It would be also desirable, if such a direction could be 
 given to State Legislation as might have some tendency to 
 incline the people of color to migrate. This, however, is a 
 subject of much delicacy. Whatever may be the success of 
 our endeavors to obtain acts for permanent aids, I have no 
 doubt that our applications for immediate contributions will 
 receive attention. It is possible, though not probable, that more 
 people of color may be disposed to migrate than can be provided 
 for with the funds the Society may be enabled to command. 
 Under this impression I suggested, some years past, to one or 
 two of the Board of Managers, to allow a small additional 
 bounty in lands to those who would pay their own passage in 
 whole or in part. The suggestion, however, was not approved. 
 
 It is undoubtedly of great importance to retain the counte 
 nance and protection of the General Government. Some of 
 our cruisers stationed on the coast of Africa would, at the same 
 
 33 At the Fifteenth Annual Meeting of the American Colonization So 
 ciety, January 16, 1832, in the Hall of the House of Representatives of 
 the United States, to a packed house the above letter was read with oth 
 ers from Lafayette, Ex-President James Madison, and others. Many 
 great men were unable to gain admittance on account of the large crowd. 
 
46 THE POLITICAL AND ECONOMIC 
 
 time, interrupt the slave trade a horrid traffic detested by all 
 good men, and would protect the vessels and commerce of the 
 Colony from pirates who infest those seas. The power of the 
 government to afford this aid is not, I believe, contested. I 
 regret that its power to grant pecuniary aid is not equally free 
 from question. On this subject, I have always thought, and 
 still think, that the proposition made by Mr. King, in the 
 Senate, is the most unexceptionable, and the most effective that 
 can be devised. 
 
 The fund would probably operate as rapidly as would be 
 desirable, when we take into view the other resources which 
 might come in aid of it, and its application would be, perhaps, 
 less exposed to those constitutional objections which are made 
 in the South than the application of money drawn from the 
 Treasury and raised by taxes. The lands are the property of 
 the United States, and have heretofore been disposed of by 
 the government under the idea of absolute ownership. The 
 cessions of the several States convey them to the General Gov 
 ernment for the common benefit without prescribing any limits 
 to the judgment of Congress, or any rule by which that judg 
 ment shall be exercised. The cession of Virginia indeed seems 
 to look to an apportionment of the fund among the States, " ac 
 cording to their several respective proportions in the general 
 charge and expenditure." But this cession was made at a time 
 when the lands were believed to be the only available fund for 
 paying the debts of the United States and supporting their 
 Government. This condition has probably been supposed to be 
 controlled by the existing constitution, which gives Congress 
 " power to dispose of, and make all needful rules and regula 
 tions respecting the territories or the property belonging to the 
 U. States. It is certain that the donations made for roads and 
 colleges are not in proportion to the part borne by each State 
 of the general expenditure. The removal of our colored popu 
 lation is, I think, a common object, by no means confined to 
 the slave States, although they are more immediately interested 
 in it. The whole Union would be strengthened by it, and 
 relieved from a danger, whose extent can scarcely be estimated. 
 It lessens very much in my estimation the objection in a po 
 litical view to the application of this ample fund that our lands 
 are becoming an object for which the States are to scramble, 
 and which threatens to sow the seeds of discord among us in- 
 
DOCTRINES OF JOHN MARSHALL 47 
 
 stead of being what they might be a source of national 
 wealth. 
 
 I am, dear sir, with great and respectful esteem, 
 Your obedient servant, 
 
 J. MARSHALL. 
 
 TO CHARLES CARTER 
 
 RICHMOND, May 8th, 1833. 
 MY DEAR SIR : 
 
 Your letter of the 27th of April reached me two or three 
 days past. Let me congratulate you on the equanimity with 
 which you contemplate your [the next few words are illegible] 
 rocks and mountains. They can be rendered pleasant by one 
 step and by one only. That your own feelings will readily 
 suggest, and will urge upon you with irrestible force. 
 
 Mr. Pendleton died on the 23d of October 1803. I do not 
 know his age exactly. He was about eighty. I am uncertain 
 whether he had completed his 8oth year or was to it. I do not 
 know whether he wrote the political article suggested to him 
 by Mr. Jefferson in his letter of Jan. 29 & Feb. 24. So many 
 essays appear on that subject that my memory does not retain 
 them. I have however no recollection that any one of them 
 was ascribed to Mr. Pendleton. 
 
 The long home letter was a subject of much conversation at 
 the time. I know of no person who is intimately acquainted 
 with all its inner [the next few words are illegible] but Col. 
 John Nichols. It is possible that he may have retained a 
 copy of it. If he has not a copy it might be found in the papers 
 published by Augustine Davis but I know not where that paper 
 is to be found. 
 
 Mr. Sujt has received a letter from your brother making 
 enquiries respecting this letter, and I have referred him to Col. 
 Nichols. It was generally ascribed at the time to Mr. Carr. 
 
 I suspect the intention of attacking your brother s observa 
 tions on the writings of Mr. Jefferson is abandoned. I am 
 inclined to believe that the friends of the gentleman are willing 
 to permit the subject to sink into oblivion if possible. 
 
 I believe that the reference of Mr. Ritchie to a paper pub 
 lished by Mr. Pendleton was to one written by him after the 
 election of Mr. Jefferson which was headed " The danger not 
 
48 THE POLITICAL AND ECONOMIC 
 
 over." Its particular object was to keep up jealousy and sus 
 picion against the federalists. I do not recollect that it was 
 directed particularly against the X Y & Z dispatch. 
 I am my dear Sir with great regard 
 and esteem 
 
 Your obed t 
 
 J. MARSHALL. 
 
 of 
 
 l 
 
 WASHINGTON, Jany 29, 1832. 
 DEAR SIR: 
 
 I received two or three days past your letter of the 26th of 
 Nov. through Major Lewis. That written about three wee 
 earlier to which you refer has never reached me. 
 
 I have heard of the work to which you allude, and it has bee 
 well spoken of. The pen from which it proceeds authorize 
 high expectations, and I am sure, although it may attract much 
 abuse, it will be read with great avidity. For any defense of 
 myself I shall of course be grateful ; and have certainly no wish 
 that it should (ever act) or encroach on your paper. Were 
 my own wishes to be consulted I certainly would not make a 
 principal figure in the piece, and shall think my place fully as 
 conspicuous as. it ought to be if I am classed with those you 
 mention, and am proportionately, I have so much vanity as to 
 say equally noticed. I am sure I shall not think your re 
 searches indifferent much less injurious. 
 
 I have never allowed myself to be excited (or intimidated) 
 by Mr. Jefferson s unprovable and unjustifiable aspersions on 
 my conduct and principles, nor have I ever noticed them except 
 on one occasion when I thought myself called on to do so, and 
 when I thought that declining to enter upon my justification 
 might have the appearance of crouching under the lash, and 
 admitting the justice of its infliction. 
 
 I believe no copy of the dispatches of the Envoys of whom I 
 was one is now to be found except in the volumes of state papers 
 published by the governments of foreign communications to 
 the French Directory. I never saw a copy nor do I believe that 
 one having the appearance of authority was ever published. If 
 any supposititious paper was uttered in any federal gazette I do 
 not recollect to have seen it, nor do I recollect that federalists 
 ever charged the party led by Mr. Jefferson with having applied 
 for military aid. We suspected, and the scanty communica- 
 
DOCTRINES OF JOHN MARSHALL 49 
 
 tions we received confirmed the suspicion, that the logic of 
 Logan s Mission was to answer the Directory that they had 
 gone too far and that their party in this country would be 
 ruined, should they persist in the course of outrage and hos 
 tility which had been commenced with so much violence. 
 
 I do not believe that Logan s transactions in France have ever 
 been published. Certainly I have no account of them, nor have 
 I the possession of any documents which can throw light on 
 that affair. I recollect that something was published by Logan 
 himself respecting it long after his return but I do not remem 
 ber the substance of his publication and have no copy of it. 
 
 Our dispatches, which were laid before Congress and pub- 
 Jfcshed contain all the information it would be in my power to 
 Rive relative to our communications with the directory or its 
 j^pgents. I did indeed keep a journal in which was inserted our 
 Carious conversations with the agents of Mr. Tallyrand. The 
 most interesting communication which I recollect was the assur 
 ance which the most confidential of them gave us that if we 
 supposed we should be supported by our countrymen we were 
 mistaken ; that the influence of France in the United States was 
 such that we should find our countrymen ready to take part 
 against us. I do not recollect the words but this was the sub 
 stance. 
 
 Your book will be looked for with impatience generally 
 certainly by myself. 
 
 I am, dear Sir, with the best wishes for your happiness, very 
 respectfully your obedt servant, 
 
 J. MARSHALL. 
 
 TO BUSHROD WASHINGTON 
 
 RICHMOND, Oct. 31, 1819. 
 DEAR SIR: 
 
 I received this morning yours of the 26th. The cases which 
 will come before you in Philadelphia, if the indictments are 
 drawn on the last act of Congress must depend, if the accused 
 are guilty, on the very point I have adjourned to the supreme 
 court, because that question whether, in any case whatever, a 
 communication can take place under that act. In the trial at 
 Richmond the evidence was perfectly clear & the case was un 
 equivocally a case of piracy according to the laws of every civ- 
 
50 THE POLITICAL AND ECONOMIC 
 
 ilized nation. The doubt I entertain is whether there is any 
 such thing as Piracy as " defined by the laws of nations/ 
 
 All nations punish robbery committed on the high seas by 
 vessels not commissioned to make captures, yet I doubt seri 
 ously whether any nation punishes otherwise than by force of 
 its own particular statute. 
 
 This account given by the editor of the union is not correct. 
 The subscription was four dollars per annum instead of five 
 unless the subscriber was in arrears & I was in advance. I had 
 paid to Col. [the name is not clear], the authorized agent of 
 Mr. Bronson, when the Gazzette of the United States became 
 the Union it was advertised that in future the paper would be 
 five dollars, but that this charge would not affect those who 
 were in advance for the paper until the time for which they had 
 paid should elapse. I was then in advance to last June, conse 
 quently I only owe for that time. I am not however disposed 
 to quibble about it. Mr. Bronson I presume has sold out his 
 accounts with his paper and has credited me only from the time 
 his agent has settled with him, in consequence of which he has 
 charged me five instead o.f four dollars. I request you there 
 fore to pay the amount. 
 
 I am dear Sir yours [torn off] 
 
 J. MARSHALL. 
 
 WASHINGTON, Jany i8th, 34. 
 DEAR SIR: 
 
 I received some time past your letter informing me that you 
 had presented your " Life of Washington " to a literary friend 
 and requesting another copy. Not having an opportunity of 
 forwarding to you this record copy, I deferred the business 
 till my arrival in Washington when I might commit it to the care 
 of your friend Major Lewis in the hope that it would reach you 
 safely. The letter you have received from Mr. Madison re 
 moves the evil which the misspelling of a name had cast over 
 the letter published in Mr. Jefferson s Correspondence to which 
 you allude. 
 
 You are right in supposing that I was on very intimate terms 
 with your Father about the time to which you refer in your 
 letter of the I7th of September last, and afterward to the close 
 of his life. We served together in the legislature of the state 
 and generally acted together in the assembly of Virginia as 
 
DOCTRINES OF JOHN MARSHALL 51 
 
 well as in Congress. He was during the whole of that time the 
 personal as well as political friend both of General Washing 
 ton and Colonel Hamilton, and supported the administration of 
 General Washington during his first Presidency as well as for 
 the second term, in every measure but one. He was seriously 
 and warmly opposed to the assumption of the state debts, and 
 took an active part in the House of Delegates against the ad 
 ministration and some resolutions which were offered con 
 demnatory of that part of Hamilton s system of finance. I 
 know however that this course neither estranged him from 
 General Washington nor Col. Hamilton. The friendship be 
 tween them I have reason to believe was never interrupted. 
 I am inclined to believe, but of this I am not certain, that Gen 
 eral Lee also disapproved that part of the system which gave to 
 holders of certificates the full value expressed on their face. 
 My recollection on this point is uncertain, but on the assump 
 tion it is positive because I well remember his eloquence and 
 earnest speeches on the subject. 
 
 I suspect however that the confidence and friendship of the 
 parties was not impaired by this opposition of sentiment on 
 this question. Of this you have I doubt not, abundant proof in 
 the correspondence of your Father. 
 
 We have a stormy session abounding with subjects of great 
 excitement. The old federalists see much to deplore and not \ 
 much to approve. 
 
 We fear that the fabric created for us by our predecessors is 
 about to tumble into ruin. But I mix so little with politicians 
 that it would be presumptuous in me to hazard conjecture on 
 the future. The papers will give you some idea of the state of 
 public feeling. Providence has saved us more than once, and 
 I hope will save us again. 
 
 I am dear Sir with great respect and regard 
 
 Your obedt 
 
 J. MARSHALL. 
 
 On the outside of the following letter was the address : Mr. 
 Hon ble Bushrod Washington, Alexandria, June 10, 16. 
 
 I expected these numbers would have concluded my answer to 
 Hampden but I must write two others which will follow in a 
 few days. If the publication has not commenced I would 
 
52 THE POLITICAL AND ECONOMIC 
 
 rather wish the signature to be changed to " A Constitutional 
 ist." 
 
 A friend of the Constitution is so much like a friend of the 
 Union that it may lead to some suspicion of identity. It is 
 however of no great consequence. I hope the publication has 
 commenced unless the editor should be unwilling to devote so 
 much of his paper to this discussion. The letters of Amphyc- 
 tion & of Hampden have made no great impression in Rich 
 mond, but they were designed for the country & have had con 
 siderable influence there. I wish the refutation to be in the 
 hand of some respectable members of the legislature and may 
 prevent some act of the assembly (equally) silly & wicked. If 
 the publication be made, I should like to have two or three sets 
 of the papers to be used if necessary. 
 
 I will settle with the printer. 
 
 The above five or six letters, all in a fair state of preservation, 
 are in the manuscript department of the Library of Congress. 
 They were nearly all sent to Bushrod Washington. There are 
 words, names, and addresses written on the backs of some of 
 the letters, which, by the way, have never been published before. 
 
 UNPUBLISHED LETTER 
 
 From Chief Justice Marshall to George Washington, of Georgetown, on 
 the occasion of the death of Judge Bushrod Washington. Con 
 tributed by Mr. William Alexander Smith, of New York City 
 
 RICHMOND, VA., Nov. 29th, 1829. 
 To Hon. George Washington, 
 
 Georgetown. 
 MY DEAR SIR : 
 
 I am much obliged by the kind attention manifested by your 
 letter of the 26th inst. The intelligence it communicates is 
 indeed most afflicting. I had few friends whom I valued so 
 highly as your Uncle, or whose loss I should regret more 
 sincerely. 
 
 I had flattered myself when we parted last spring that I 
 should leave him on the bench when retiring from it myself ; but 
 Heaven has willed otherwise. We have been most intimate 
 friends for more than forty years, and never has our friendship 
 
DOCTRINES OF JOHN MARSHALL 53 
 
 sustained the slightest interruption. I sympathise most truly 
 with Mrs. Washington. 
 
 With great respectful esteem, 
 
 I am, dear sir, 
 
 your obedt. 
 
 J. MARSHALL. 34 
 
 RICHMOND, July 27th, 1812. 
 DEAR SIR: 
 
 I had this morning the pleasure of receiving your letter of the 
 24th The paper you mention reached me a few days past 
 & was read with attention and approbation. Your wish re 
 specting its republication will not be forgotten. 
 
 The view you take of the edict purporting to bear date on the 
 28th of April, 1811, appears to me to be perfectly correct. I 
 am astonished, if in these times anything ought to astonish, 
 that the same impression is not made on all. 
 
 Although I have for several years forborn to intermingle 
 with those questions which agitate & excite the feelings of 
 party, it is impossible that I could be inattentive to passing 
 events, or an unconcerned observer of them. As they have in 
 creased in their importance, the interest, which as an American 
 I must take in them, has also increased ; and the declaration of 
 war has appeared to me, as it has to you, to be one of those 
 portentous acts which ought to concentrate on itself the efforts 
 of all those who can take an active part in rescuing their 
 country from the ruin it threatens. All minor considerations 
 should be waived ; the lines of subdivision of parties, if not 
 absolutely effaced, should at least be covered for a time; and 
 the great division between the friends of peace & the advocates 
 of war ought alone to remain. It is an object of such magni 
 tude as to give to almost every other, comparative insignifi 
 cance; and all who wish peace ought to unite in the means 
 which may facilitate its attainment, whatever may have been 
 their differences of opinion on other points. 
 
 On reading the decree of the 28th of April I could not avoid 
 asking myself questions such as these. 
 
 This decree having been obviously fabricated since the official 
 declaration of the Prince Regent that the orders in council 
 
 34 The above letter is printed in The Magazine of American History, 
 Vol. XII, p. 278. 
 
54 THE POLITICAL AND ECONOMIC 
 
 would stand repealed so soon as the decrees of Berlin & Milan 
 should be proved by an authentic document to be revoked, why 
 was it not dated on the ist of November 1810 instead of the 
 28th of April 1811 ? Since the one date might have been af 
 fixed to it as readily as the other, why was not that date affixed 
 which would have saved the feelings of the American govern 
 ment by supporting the assertion it has uniformly made in its 
 diplomatic intercourse with foreign governments, in its do 
 mestic official communications, & in its legislative acts ? as 
 sertions on the truth of which our whole system stands ? Had 
 France felt for the United States any portion of that respect 
 to which our real importance entitles us, would she have failed 
 to give this proof of it? But regardless of the assertion made 
 by the President in his Proclamation of the 2d of Novr 1810. 
 regardless of the communications made by the Executive to 
 the Legislature, regardless of the acts of Congress, and re 
 gardless of the propositions which we have invariably main 
 tained in our diplomatic intercourse with Great Britain, the 
 Emperor has given a date to his decree, & has assigned a mo 
 tive for its enactment, which in express terms contradict every 
 assertion made by the American nation throughout all the de 
 partments of its government, & removed the foundation on 
 which its whole system has been erected. The motive for this 
 offensive & contemptuous proceeding cannot be to rescue him 
 self from the imputation of continuing to enforce his decree 
 after their formal repeal, because this imputation is precisely 
 as applicable to a repeal dated the 28th of April 1811 as to 
 one dated the ist of November 1810, since the execution of 
 those decrees has continued after the one date as well as after 
 the other. Why then is this obvious fabrication such as we 
 find it? Why has Mr Barlow been unable to obtain a paper 
 which might consult the honor & spare the feelings of the 
 government ? The answer is not to be disguised. Bonaparte 
 does not sufficiently respect us to exhibit for our sake, to 
 France, to America, to Britain, or to the world, any evidence 
 of his having receded one step from, the position he had taken. 
 He could not be prevailed on, even after we had done all he 
 required, to soften any one of his acts so far as to give it the 
 appearance of his having advanced one step to meet us. That 
 this step or rather the appearance of having taken it, might 
 save our reputation was regarded as dust in the balance. Even 
 
DOCTRINES OF JOHN MARSHALL 55 
 
 now, after our solemn & repeated assertions that our discrim 
 ination between the beligerants is founded altogether on a 
 first advance of France, on a decisive & unequivocal repeal 
 of all her obnoxious decrees; after we had engaged in a war 
 of the most calamitous character,- avowedly, because France 
 had repealed those decrees, the Emperor scorns to countenance 
 the assertion or to leave it uncontradicted. He avers to our 
 selves, to our selected enemy, & to the world, whatever pre 
 texts we may assign for our conduct, he has in fact ceded 
 nothing, he has made no advance, he stands on his original 
 ground & we have marched up to it. We have submitted, 
 completely submitted ; & he will not leave us the poor consola 
 tion of concealing that submission from ourselves. But not 
 even our submission has obtained relief. His cruizers still 
 continue to capture, sink, burn, & destroy. 
 
 I cannot contemplate this subject without excessive mortifi 
 cation as well at the contempt with which we are treated as at 
 the infatuation of my countrymen. It is not however for me 
 to indulge these feelings though I cannot so entirely suppress 
 them as not sometimes though rarely to allow them a place in 
 a private letter. 
 
 With respectful esteem 
 
 I am Sir your obedt servt 
 
 J MARSHALL. 35 
 
 RICHMOND Novr 7th 1834. 
 MY DEAR GRANDSON : 
 
 I had yesterday the pleasure of receiving your letter of the 
 2Qth of November, and am quite pleased with the course of 
 study you are pursuing. Proficiency in Greek and Latin is 
 indispensable to an accomplished scholar, and may be of great 
 real advantage in our progress through human life. Cicero 
 deserves to be studied still more for his talents than for the 
 improvement in language to be derived from reading him. 
 He was unquestionably, with the single exception of De 
 mosthenes, the greatest orator among the ancients. He was 
 too a profound Philosopher. His " de officiis " is among the 
 
 35 The above letter is printed in The Pennsylvania JMagazine, Vol. 
 25, pp. 263-265. The letter was sent to R. Smith. No further address was 
 given. The original is in the Dreer Collection of the Historical Society 
 of Pennsylvania. 
 
56 THE POLITICAL AND ECONOMIC 
 
 most valuable treatises I have ever seen in the latin language. 
 
 History is among the most essential departments of knowl 
 edge; and, to an American, the histories of England and of 
 the United States are most instructive. Every man ought to 
 be intimately acquainted with the history of his own country. 
 Those of England and of the United States are so closely con 
 nected that the former seems to be introductory to the latter. 
 They form one whole. Hume, as far as he goes, to the revolu 
 tion of 1688, is generally thought the best Historian of Eng 
 land. Others have continued his narative (sic) to a late 
 period, and it will be necessary to read them also. 
 
 There is no exercise of the mind from which more valuable 
 improvement is to be drawn than from composition. In every 
 situation of life the result of early practice will be valuable. 
 Both in speaking and writing, the early habit of arranging our 
 thoughts with regularity, so as to point them to the object to 
 be proved, will be of great advantage. In both, clearness and 
 precision are most essential qualities. The man who by seek 
 ing 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. 
 Blair, whose lectures are greatly and justly admired, advises 
 a practice well worthy of being observed. It is to take a page 
 of some approved writer and read it over repeatedly until the 
 matter, not the words, be fully impressed on the mind. Then 
 write, in your own language, the same matter. A comparison 
 of the one with the other will enable you to remark and cor 
 rect your own defects. This course may be pursued after hav 
 ing made some progress in composition. In the commence 
 ment, the student ought carefully to reperuse what he has 
 written, correct, in the first instance, every error of orthog 
 raphy and grammar. A mistake in either is unpardonable. 
 Afterwards revise and improve the language. 
 
 I am pleased with both your pieces of composition. The 
 subjects are well chosen and of the deepest interest. Hap- 
 
DOCTRINES OF JOHN MARSHALL 57 
 
 piness is pursued by all, though too many mistake the road by 
 which the greatest good is to be successfully followed. Its 
 abode is not always in the pallace or the cottage. Its resi 
 dence is the human heart, and its inseparable companion is a 
 quiet conscience. Of this, Religion is the surest and safest 
 foundation. The* individual who turns his thoughts fre 
 quently to an omnipotent omniscient and all perfect being, 
 who feels his dependence on, and his infinite obligations to that 
 being will avoid that course of life which must harrow up the 
 conscience. 
 
 My love to your mother & the family 
 Your affectionate Grandfather, 
 
 J. MARSHALL. 
 
 This letter was sent to the editor of The Nation, by Mr. 
 William F. Abbot, of Worcester, Massachusetts, on February 
 2, 1901. At that time he wrote as follows : 
 
 SIR: 
 
 I enclose to you for publication a letter of John Marshall s, 
 the original of which is in my possession, and, so far as I 
 know, has never been printed before. It is addressed to : 
 
 " Mr. John Marshall Jr. 
 
 " of Mont blanc 
 
 " near Oak hill 
 
 " Fauquier." 
 
 It is postmarked " Richmond, Va., Dec. 8." This, with the 
 allusion to his grandson s letter of November 29, shows that 
 its date should be December 7 instead of November 7. It is 
 of great interest as showing the great jurist s ideas on educa 
 tion. 
 
 LETTER 36 OF JOHN MARSHALL TO JOHN ADAMS 
 
 4 February 1801. 
 SIR: 
 
 I pray you to accept my grateful acknowledgement for the 
 honor conferred on me in appointing me Chief Justice of the 
 United States. This additional and flattering mark of your 
 
 36 The above letter is printed in the " Life and Works of John Adams," 
 Vol. IX, p. 96. 
 
58 THE POLITICAL AND ECONOMIC 
 
 good opinion has made an impression on my mind which time 
 will not efface. 
 
 I shall enter immediately on the duties of the office and hope 
 never to give you occasion to regret having made the appoint 
 ment. 
 
 With the most respectful attachment &c 
 
 J. MARSHALL. 
 
 JOHN MARSHALL a? TO JAMES MONROE 
 
 RICHMOND, 2 December 1784. 
 DEAR SIR: 
 
 Yours of the fourteenth of November I have just received. 
 I congratulate you sincerely on your safe return to the At 
 lantic part of the world. I wish with you that our assembly 
 had never passed those resolutions respecting the British debts 
 which have been so much the subject of reprehension through 
 out the states. I wish it, because it affords a pretext to the 
 British to retain possession of the forts on the lakes, but much 
 more because I ever considered it as a measure tending to 
 weaken the federal bands, which in my conception are too 
 weak already. We are about, though reluctantly, to correct 
 the error. Some resolutions have passed a committee of the 
 whole house, on which a bill is to be brought in removing all 
 impediments in the way of the treaty, and directing the pay 
 ment of debts by installments. The resolutions were intro 
 duced by your uncle. As the bill at present stands, there are 
 to be seven annual payments, the first to commence in April, 
 1786. We have as yet done nothing finally. Not a bill of 
 public importance, in which an individual was not particularly 
 interested, has passed. The exclusive privilege given to Rum- 
 sey 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 con 
 ception would have been advantageous to this country. 
 Among these I rank the bill for encouraging intermarriages 
 with the Indians. Our prejudices, however, oppose them 
 selves to our interests, and operate too powerfully for them. 
 The two subjects which now most engross the attention o<f the 
 legislature are the general assessment and circuit court bills. 
 
 37 The above letter is printed in Bancroft s " History of the Constitu 
 tion of the United States," Vol. II. 
 
DOCTRINES OF JOHN MARSHALL 59 
 
 I am apprehensive they will both be thrown out. When sup 
 ported by all the oratory and influence of Mr. Henry, the 
 former could scarcely gain admission into the house; and 
 now, when he is about moving in a sphere of less real im 
 portance and power, his favorite measure must miscarry. I 
 am sorry the members of council were appointed before your 
 letter recommending Colonel Mercer had reached me. Had 
 I known that that gentleman wished an appointment in the 
 executive, I should certainly not have been unmindful of the 
 debt I contracted with him on a former similar occasion. Mr. 
 Jones supplies the vacancy made by the resignation of Mr. 
 Short, and Mr. Roane and Mr. Selden take the places of our 
 old friend Smith, and of Colonel Christian. I exerted myself, 
 though ineffectually, for Carrington. He was excessively 
 mortified at his disappointment, and the more as he was within 
 one vote of Selden, and as that vote was lost by the careless 
 ness of Colonel Jack Nicholas, who walked out just as we 
 were about to ballot the last time, and did not return till it 
 was too late to admit his ticket. I endeavored, too, to pro 
 mote the interests of your friend Wilson Nicholas, who is just 
 about to form a matrimonial connection with Miss Smith, of 
 Baltimore ; but he was distanced. I showed my father 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, 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 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. 
 
60 THE POLITICAL AND ECONOMIC 
 
 RICHMOND, March 29, 1832. 
 DEAR SIR: 
 
 Your letter of the 25th reached me last night. The transac 
 tion concerning which you enquire passed in the following 
 manner. As the stage passed through Philadelphia some pas 
 senger mentioned to a friend he saw in the street the death of 
 General Washington. The report flew to the hall of Con 
 gress and I was asked to move an adjournment. I did so. 
 General Lee was not at the time in the House. On receiv 
 ing the intelligence, which he did on the first arrival of the 
 stage, he retired to his room and prepared the resolutions which 
 were adopted, with the intention of offering them himself. 
 But the house of Representatives had risen on my motion, and 
 it was expected by all that I would on the next day announce 
 the lamented event and propose resolutions adapted to the oc 
 casion. General Lee immediately called on me and shewed me 
 his resolutions. He said it had now become improper for 
 him to offer them, and wished me to take them. As I had 
 not written anything myself and was pleased with his resolu 
 tions, which I entirely approved, I told him I would offer them 
 the next day, when I should state to the House of Representa 
 tives the confirmation of the melancholy intelligence received 
 the preceding day. I did so. You will see the fact stated in 
 a note to the preface to the Life of Washington, p. v, and 
 again in a note to the 5th vol, p 765. 
 
 J. MARSHALL. 38 
 
 LETTER OF JOHN MARSHALL TO HIS SON, 
 EDWARD C. MARSHALL 
 
 WASHINGTON, Feb. 15, 1832. 
 MY DEAR SON : 
 
 Your letter of the loth gave me great pleasure, because it 
 assured me of the health of your family and the health of the 
 other families in which I take so deep an interest. My own 
 has improved. I strengthen considerably, and am able, with 
 out fatigue, to walk to court, a distance of two miles, and re 
 turn to dinner. At first this exercise was attended with some 
 difficulty, but I feel no inconvenience from it now. The sym- 
 
 38 The above letter is printed in " The Writings of George Washington," 
 Vol. XIV, p. 262, footnote. This letter was written by Judge Marshall to 
 Charles \V. Hansen. 
 
DOCTRINES OF JOHN MARSHALL 61 
 
 pathetic feeling to which you allude sustains no diminution ; I 
 fear it never will. I perceive no symptoms, and I trust I never 
 shall, of returning disease. The question of Mr. Van Buren s 
 nomination (minister to England) was not exempt from diffi 
 culty. Those who opposed him, I believe, thought conscien 
 tiously that his appointment ought not to be confirmed. They 
 felt a great hostility to that gentleman from other causes than 
 his letters to Mr. McLane. They believe him to have been at 
 the bottom of a system which they condemn. Whether this 
 conviction be well or ill founded, it is their conviction ; at 
 least I believe it is. In such a. case it is extremely difficult, al 
 most impossible, for any man to separate himself from his 
 party. 
 
 This session of Congress is indeed peculiarly interesting. 
 The discussion of the tariff and on the bank, especially, will, I 
 believe, call forth an unusual display of talents. I have no 
 hope that any accommodation can take place on the first ques 
 tion. The bitterness of party spirit on that subject threatens 
 to continue unabated. There seems to be no prospect of allay 
 ing it. The two great objects in Virginia are internal im 
 provements and our coloured population. On the first, I 
 despair. On the second, we might do much if our unfortu 
 nate political prejudices did not restrain us from asking the 
 aid of the Federal Government. As far as I can judge, that 
 aid, if asked, would be freely and liberally given. The associa 
 tion you speak of, if it could be made extensive, might be of 
 great utility, and I would suggest the addition of a resolution 
 not to bring any slave into the country. 
 I am, my dear son, 
 
 Your affectionate father, 
 
 J. MARSHALL. 
 
 LETTER FROM JOHN MARSHALL TO HIS GRANDSON 
 
 WASHINGTON, March n, 1835. 
 MY DEAR GRANDSON : 
 
 I have received your letter of the 25th of February, and am 
 not a little gratified at the account you give of your standing 
 in your class. It does you great honor as a student to remain 
 so long at the head of it. 
 
 Cicero was an elegant scholar, and the greatest orator of 
 
62 THE POLITICAL AND ECONOMIC 
 
 his day. Besides his orations he has written several essays 
 which have attracted much admiration. 
 
 I am very glad to hear of your progress in arithmetic, and 
 to see that you improve in your handwriting. It is a fault 
 which, I am glad to believe, you will not commit. You have 
 had a very severe winter, but that is unfavorable to study. If 
 you have been unable to go to school, the time, I am sure, has 
 not been lost. Nothing is more precious than time, especially 
 to the young, and yet nothing slips from us less regarded or less 
 valued. I am, my dear grandson, 
 
 Your affectionate grandfather, 
 
 J. MARSHALL. 
 
 LETTER FROM JOHN MARSHALL TO HIS SON, JAMES KEITH 
 MARSHALL, OF FAUQU IER COUNTY, VIRGINIA 
 
 RICHMOND, December 14, 1828. 
 MY DEAR SON : 
 
 You hogs arrived on Wednesday evening. I had twelve of 
 them killed on Friday morning. They weighed 1891. The 
 remaining thirteen will be killed as soon as the weather will 
 permit, perhaps to-morrow, but the weather I fear is too hot. 
 I fear you will be disappointed in the price. It is four dol 
 lars only. An immense quantity has come in from the West. 
 I shall give you four and a quarter, and take myself what I 
 cannot sell at that price. As I know nothing about the title 
 to the land in question, I presume your object is to make some 
 inquiries respecting the characters of Mr. M. and Mr. A. Of 
 Mr. A., I know nothing. Mr. M. is a lawyer of eminence, 
 who was formerly a judge. He unfortunately engaged in 
 some purchases in the mad times that have gone by, which 
 wasted his fortune, in consequence of which he resigned his 
 seat on the bench and returned to the bar. He is a sensible 
 man, and I should place confidence in what he says. Were 
 it my business I should procure the information he asks and 
 give him a moiety of the land if he will prosecute the claim 
 at his own expense. I should have feared that the act of 
 limitations was already a bar, but Mr. M. s judgment may be 
 relied on. You mother s love to the family. 
 I am, my dear son, 
 
 Your affectionate father, 
 
 J. MARSHALL. 
 
DOCTRINES OF JOHN MARSHALL 63 
 
 When absent from his wife, Chief Justice Marshall, a most 
 dutiful husband, wrote to her quite frequently, cheering her 
 weary hours of pain with graphic and lively sayings and do 
 ings at the nation s capital. He usually called his wife Polly. 
 
 The following is a part of a letter to Mrs. Mary W. Marshall, 
 Richmond, Virginia : 
 
 WASHINGTON, Feb., 1829. 
 
 Our sick judges have at length arrived and we are as busy 
 as men can well be. 
 
 I do not walk so far as I formerly did, but I still keep up 
 the pastime of walking in the morning. We dined on Fri 
 day last with the President, and I sat between Mrs. Adams 
 and the lady of a member of Congress whom I found quite 
 agreeable as well as handsome. Mrs. Adams was as cheer 
 ful as if she was to continue in the great house for the ensuing 
 four years. The President also is in good health and spirits. 
 I perceive no difference in consequence of the turn the late 
 election has taken. General Jackson is expected in the city 
 within a fortnight and is to put up in this house. I shall, of 
 course, wait on him. It is said he feels the loss of Mrs. 
 Jackson very seriously. It would be strange if he did not. 
 A man who at his age loses a good wife loses a friend whose 
 place cannot be supplied. I dine to-morrow with the Brit 
 ish Minister and the next day again with the President. I 
 have never before dined with the President twice during the 
 same session of the Court. That on Friday was an official 
 dinner. The invitation for Tuesday is not for all the other 
 judges, and I consider it a personal civility. Tell Mr. Call 
 all the Secretaries are sick, and Mr. Clay among them. He 
 took cold by attending the Colonization Society and has been 
 indisposed ever since. The town, it is said, was never so full 
 as at present. The expectation is that it will overflow on 
 the 3d of March. The whole world, it is said, will be here. 
 This, however, will present no temptation to you to come. I 
 wish I could leave it all and come to you. How much more 
 delightful would it be to sit by you than to witness all the 
 pomp and parade of the inauguration. 39 
 
 39 The above, a part of a letter, was contributed to the Green Bag by 
 Sallie E. Marshall, a great-granddaughter of the Chief Justice. It is 
 printed in the December number, 1896. 
 
64 THE POLITICAL AND ECONOMIC 
 
 From 1788 to 1797 Marshall practiced law with the earnest 
 desire, as he said, to accumulate sufficient fortune to insure 
 the comfort and happiness of his wife and children. About 
 this time he wrote the following letter. 
 
 LETTER FROM JOHN MARSHALL TO 
 JUDGE ARCHIBALD STUART 
 
 I cannot appear for Donaghoe. I do not decline his busi 
 ness from any objection to his bank. To that I should like 
 very well to have free access, and would certainly discount 
 from it as largely as he would permit ; but I am already fixed 
 by Rankin, and as those who are once in the bank do not, I 
 am told, readily get out again, I despair of being ever able to 
 touch the guineas of Donaghoe. 
 
 Shall we never see you again in Richmond? I was very 
 much rejoiced when I heard that you were happily married, 
 but if that amounts to a ne exeat, which is to confine you 
 entirely to your side of the mountain, I shall be selfish enough 
 to regret your good fortune, and almost to wish you had 
 found some little crooked rib among the fish and oysters which 
 would once a year drag you into this part of our terraqueous 
 globe. 
 
 You have forgotten, I believe, the solemn compact we made 
 to take a journey to Philadelphia this winter, and superintend 
 for a while the proceedings of Congress. I wish very much 
 to see you. I want to observe how much honester men you 
 and I are (than) half one s acquaintance. Seriously, there 
 appears to me every day to be more folly, envy, malice, and 
 damned 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. 
 
 We fear, and not without reason, a war. The man does 
 not live who wishes for peace more than I do, but the out 
 rages committed upon us are beyond human bearing. 
 Farewell. 
 
 Pray heaven we may weather the storm. 
 
 Yours, 
 
 J. MARSHALL. 40 
 
 40 The fashion of Marshall s wit and a glimpse of his friendly geniality 
 are shown in the above letter. This letter is published in the Green Bag, 
 Vol. 10. 
 
DOCTRINES OF JOHN MARSHALL 65 
 
 EXTRACT OF A LETTER 
 
 From John Marshall, Esq., Secretary of State, to Rufus King, Minister 
 Plenipotentiary of the United States at London 
 
 DEPARTMENT OF STATE, September 20, 1800. 
 
 The impressment of our seamen is an injury of very serious 
 magnitude, which deeply affects the feelings and the honour 
 of the nation. 
 
 This valuable class of men is composed of natives and 
 foreigners who engage voluntarily in our service. 
 
 No right has been asserted to impress the natives of Amer 
 ica. Yet they are impressed, they are dragged on board 
 British ships of war, with the evidence of citizenship in their 
 hands, and forced by violence there to serve, until conclusive 
 testimonials of their birth can be obtained. These must most 
 generally be sought for on this side of the Atlantick. In the 
 mean time acknowledged violence is practised on a free citizen 
 of the United States, by compelling him to engage, and to 
 continue in foreign service. Although the lords of the ad 
 miralty uniformly direct their discharge on the production 
 of this testimony, yet many must perish unrelieved, and all 
 are detained a considerable time in lawless and injurious con 
 finement. 
 
 It is the duty as well as the right of a friendly nation, to re 
 quire that measures be taken by the British government to 
 prevent the continued repetition of such violence by its agents. 
 This can only be done by punishing and frowning on those 
 who perpetrate it. The mere release of the injured, after a 
 long course of service and of suffering is no compensation for 
 the past, and no security for the future. It is impossible not 
 to believe, that the decisive interference of the government 
 in this respect, would prevent a practice, the continuance of 
 which must inevitably produce discord between two nations 
 which ought to be the friends of each other. 
 
 Those seamen, who, born in a foreign country, have been 
 adopted by this, were either the subjects of Britain or some 
 other power. 
 
 The right to impress those who were British subjects has 
 been asserted, and the right to impress those of every other 
 nation has not been disclaimed. 
 
 Neither the one practice nor the other can be justified. 
 
 With the naturalization of foreigners, no other nation can 
 
66 THE POLITICAL AND ECONOMIC 
 
 interfere further than the rights of that other are affected. 
 The rights of Britain are certainly not affected by the nat 
 uralization of other than British subjects. Consequently those 
 persons who, according to our laws, are citizens, must be so 
 considered by Britain, and by every other power not having 
 a conflicting claim to the person. 
 
 The United States therefore require positively, that their 
 seamen who are not British subjects, whether born in Amer 
 ica or elsewhere, shall be exempt from impressments. 
 
 The case of British subjects, whether naturalized or not, 
 is more questionable; but the right even to impress them is 
 denied. The practice of the British government itself, may 
 certainly in a controversy, with that government, be relied on. 
 The privileges it claims and exercises ought to be ceded to 
 others. To deny this would be to deny the equality of na 
 tions, and to make it a question of power and not of right. 
 
 If the practice of the British government may be quoted, 
 that practice is to maintain and defend in their sea service all 
 those, of any nation, who have voluntarily engaged in it, or 
 who, according to their laws, have become British subjects. 
 
 Alien seamen, not British subjects, engaged in our mer 
 chant service, ought to be equally exempt with citizens from 
 impressments : we have a right to engage them, and have a 
 right too and an interest in their persons to the extent of the 
 service contracted to be performed. Britain has no pretext 
 of right to their persons or to their service. To tear them, 
 then, from our possession, is at the same time an insult and 
 an injury. It is an act of violence for which there exists no 
 palliative. 
 
 We know well that the difficulty of distinguishing between 
 native Americans and British subjects has been used, with 
 respect to natives, as an apology for the injuries complained 
 of. It is not pretended that this apology can be extended to 
 the case of foreigners, and even with respect to natives we 
 doubt the existence of the difficulty alleged. We know well 
 that among that class of people who are seamen, we can 
 readily distinguish between a native American and a person 
 raised to manhood in Great Britain or Ireland; and we do not 
 perceive any reason why the capacity of making this dis 
 tinction should not be possessed in the same degree by one 
 nation as by the other. 
 
DOCTRINES OF JOHN MARSHALL 67 
 
 If, therefore, no regulation can be formed which shall ef 
 fectually secure all seamen on board American merchantmen, 
 we have a right to expect from the justice of the British gov 
 ernment, from its regard for the friendship of the United 
 States and its own honour, that it will manifest the sincerity 
 of its wishes to repress this offense, by punishing those who 
 commit it. 
 
 We hope, however, that an agreement may be entered into 
 satisfactory and beneficial to both parties. The article which 
 appears to have been transmitted by my predecessor, while 
 it satisfies this country, will probably restore to the naval 
 service of Britain a greater number of seamen than will be 
 lost by it. Should we even be mistaken in this calculation, 
 yet the difference cannot be put in competition with the mis 
 chief which may result from the irritation justly excited, by 
 this practice, throughout the United States. The extent and 
 the justice of the resentments it produces, may be estimated, 
 in Britain, by inquiring what impressions would be made 
 on them by similar conduct on the part of this govern 
 ment. 
 
 Should we impress from the merchant service of Britain, 
 not only Americans but foreigners, and even British sub 
 jects, how long would such a course of injury unredressed 
 be permitted to pass unrevenged? How long would the gov 
 ernment be content with unsuccessful remonstrance and un 
 availing memorials? 
 
 I believe, sir, that only the most prompt correction of, com 
 pensation for, the abuse, would be admitted as satisfaction in 
 such a case. 
 
 If the principles of this government forbid it to retaliate 
 by impressions, there is yet another mode which might be re 
 sorted to. We might authorize our ships of war, though not 
 to impress, yet to recruit sailors on board British merchant 
 men. Such are the inducements to enter into our naval serv 
 ice that we believe even this practice would very seriously af 
 fect the navigation of Britain. How, sir, would it be re 
 ceived by the British nation ? 
 
 Is it not more advisable to desist from, and to take ef 
 fectual measures to prevent, an acknowledged wrong, 
 than by perseverance in that wrong to excite against them 
 selves the well founded resentments of America, and force 
 
68 THE POLITICAL AND ECONOMIC 
 
 our government into measures which may very possibly ter 
 minate in an open rupture. 
 
 J. MARSHALL. 41 
 
 EXTRACT FROM A LETTER 
 From Mr. Marshall, Secretary of State, to Mr. King 
 
 September 20, 1800. 
 
 The right to confiscate vessels bound to a blockaded port 
 has been unreasonably extended to cases not coming within 
 the rule as heretofore adopted. 
 
 On principle, it might be well questioned, whether this rule 
 can be applied to a place not completely invested by land as 
 well as by sea. If we examine the reasoning on which is 
 founded the right to intercept and confiscate supplies designed 
 for a blockaded town, it will be difficult to resist the convic 
 tion that its extension to towns invested by sea only is an 
 unjustifiable encroachment on the rights of neutrals. But it 
 is not of this departure from principle (a departure which has 
 received some sanction from practice) that we mean to com 
 plain. It is, that ports, not effectually blockaded by a force 
 capable of completely investing them, have yet been declared 
 in a state of blockade, and vessels attempting to enter therein 
 have been seized, and, on that account, confiscated. 
 
 This is a vexation proceeding directly from the Government, 
 and which may be carried, if not resisted, to a very injurious 
 extent. Our merchants have greatly complained of it with 
 respect to Cadiz and the ports of Holland. 
 
 If the effectiveness of the blockade be dispensed with, then 
 every port of all the belligerent Powers may, at all times, be 
 declared in that state, and the commerce of neutrals be thereby 
 subjected to universal capture. But if this principle be strictly 
 adhered to, the capacity of blockade will be limited by the 
 naval force of the belligerent, and, of consequence, the mis 
 chief to neutral commerce cannot be very extensive. It is, 
 
 41 The above letter is printed in " State Papers and Publick Documents " 
 of the United States, from the accession of George Washington to the 
 Presidency, exhibiting a complete view of our foreign relations since 
 that time. Second edition, Vol. IX. Boston, printed and published by 
 T. B. Wait and Son, 1817, pp. 23-26. 
 
 42 The above letter is printed in the " American State Papers," Class I, 
 Vol. Ill, pp. 370-371. 
 
DOCTRINES OF JOHN MARSHALL 69 
 
 therefore, of the last importance to neutrals, that this prin 
 ciple be maintained unimpaired. 
 
 I observe that you have passed this reasoning on to the 
 British minister, who replies, that an occasional absence of a 
 fleet from a blockaded port ought not to change the state of 
 the place. 
 
 Whatever force this observation may be entitled to where 
 that occasional absence has been produced by accident, as a 
 storm, which for a moment blows off the fleet and forces it 
 from its station, which station it immediately resumes, I am 
 persuaded that where a part of the fleet is applied, though only 
 for a time, to other objects, or comes into port, the very prin 
 ciple requiring an effective blockade, which is, that the mis 
 chief can then only be co-extensive with the naval force of 
 the beliggerent, requires that during such temporary absence 
 the commerce of neutrals to the place should be free. 
 
 LETTER^ FROM JOHN MARSHALL TO THE PRESIDENT OF 
 
 THE UNITED STATES 
 Communicated to the House of Representatives, February 27, 1801 
 
 DEPARTMENT OF STATE, February 27, 1801. 
 SIR: 
 
 The order of the House of Representatives of the 24th of 
 this month, requesting an account of the depredations com 
 mitted on the commerce of the United States by vessels of 
 Great Britain, of which complaint has been made to the Gov 
 ernment, having been referred to this department, I have the 
 honor to transmit herewith an abstract of such cases as have 
 been complained of since the commencement of the year 1800. 
 
 The order of the House having fixed no period at which 
 the account it requests is to commence, I have, from a con 
 sideration of the short space for which the present session 
 can continue, thought it compatible with their view to limit 
 the abstract to the time above mentioned. 
 
 From various reasons, it is to be presumed that many cap 
 tures have been made, of which no complaint has been for 
 warded to the Government. Under this impression, and for 
 the purpose of giving a comprehensive view of the subject, 
 
 43 The above letter is printed in the " American State Papers," Class I, 
 Vol. II, " Foreign Relations," p. 345. 
 
70 THE POLITICAL AND ECONOMIC 
 
 I have thought it not improper to annex to the abstract several 
 extracts of letters from our consuls, and also an extract of a 
 letter from the President of the Chamber of Commerce at 
 Philadelphia to the Secretary of the Navy. 
 
 I will also take the liberty to observe, that neither the com 
 munications from our minister at London, nor my conversa 
 tions with the charge d affaires of his Britannic Majesty in the 
 United States, would lead to an opinion that any additional 
 orders have been lately given by the British Government, 
 authorizing the system of depredation alluded to in the let 
 ter from Mr. Fitzsimmons. 
 
 I am, sir, &c. 
 
 J. MARSHALL. 
 
 THE PRESIDENT OF THE UNITED STATES. 
 
 DEPARTMENT OF STATE, February 27, 1801. 
 SIR: 
 
 In my report of this day to the President, on the subject of 
 British captures, which he will have transmitted to Congress, 
 it was accidentally omitted to insert the case of the brigantine 
 Ruby, Captain Wrigley, belonging to Mr. Ambrose Vasse, of 
 Philadelphia. This vessel, proceeding for Port-au-Prince, 
 with a cargo consisting of American produce and some Ger 
 man goods, was lately captured by the British ship of war 
 Tisiphone, and carried to Jamaica, where, the owner informs 
 me, both vessel and cargo were condemned as enemy s prop 
 erty. 
 
 I therefore request that the House will consider this letter 
 as an appendage to my report above alluded to. 
 
 I have the honor to be, &c. 
 
 J. MARSHALL. 44 
 
 THE HONORABLE THE SPEAKER OF THE HOUSE OF REPRE 
 SENTATIVES. 
 
 THE SECRETARY OF STATE TO MR. KING 
 
 DEPARTMENT OF STATE, August 23, 1800. 
 SIR: 
 
 Your letters, stating your negotiations with Lord Gren- 
 ville respecting the differences which have arisen in execut- 
 
 44 The above letter is printed in the "American State Papers," Vol. II, 
 Class i, p. 345. 
 
DOCTRINES OF JOHN MARSHALL 71 
 
 ing the sixth article of our treaty of amity, commerce, and 
 navigation with Great Britain, have been laid before, and con 
 sidered by, the President. 
 
 He still retains the opinion that an amicable explanation of 
 that article is greatly to be desired; and, therefore, receives 
 with much regret the information, that the British Cabinet 
 is indisposed to enter on the discussion of this interesting sub 
 ject. 
 
 He perceives with a concern, not entirely unmixed with 
 other sensations, that the secession of two commissioners 
 from the Board lately sitting in Philadelphia, has been attrib 
 uted, not to its real cause, but to motives which in no in 
 stance have ever influenced the American Government. 
 
 That Government is, as it has ever been, sincerely desirous 
 of executing, with perfect and scrupulous good faith, all its 
 engagements with foreign nations. This desire has contrib 
 uted, not inconsiderably, to the solicitude it now manifests 
 for the explanatory articles you have been instructed to pro 
 pose. The efforts of the American commissioners to pro 
 ceed and decide on particular cases, instead of laying down 
 abstract principles, believed to be untrue in themselves, ought 
 to have rescued their Government from suspicions, so very 
 unworthy, and so little merited by the general tenor of its 
 conduct. The resolutions, maintained by a majority of the 
 late Board of Commissioners, are such as the Government 
 of the United States can never submit to. They are con 
 sidered, not as constructive of an existing treaty, but as im 
 posing new and injurious burthens, unwarranted by compact, 
 and to which, if in the first instance plainly and intelligibly 
 stated, this Government never could and never would have 
 assented. 
 
 This opinion is not lightly taken up; it is a deep and solemn 
 conviction, produced by the most mature and temperate con 
 sideration we are capable of bestowing on the subject. 
 
 This being the fixed judgment of the United States, it is 
 impossible not seriously to apprehend, unless we could for 
 get the past, that no attempt by arbitration to adjust the 
 claims of individuals under the sixth article of the treaty, 
 previous to an explanation of it by the two Governments, can 
 be successful. A second effort at this adjustment, by the 
 proposed modification of the Board, while the principles here- 
 
72 THE POLITICAL AND ECONOMIC 
 
 to fore contended for receive the countenance of the British 
 Government, would most probably, unless, indeed, the Board 
 should again be dissolved, subject us to the painful alternative 
 of paying money, which, in our best judgment, the commis 
 sioners had no power to award, or of submitting the public 
 faith to imputations from which it could only be freed by a 
 correct and laborious investigation of the subject. In such a 
 situation, presenting to us only such an alternative, we are 
 extremely unwilling to be placed. 
 
 It is, then, very seriously desired that the explanations re 
 quired by this Government should be made. They are be 
 lieved to be so reasonable in themselves, and to be so unques 
 tionably in the spirit, and to the full extent of the existing 
 treaty, that it is hoped the difficulties, on the part of the British 
 cabinet, may yet be removed. 
 
 The President, therefore, requests that you will take any 
 proper occasion, should one in your judgment present itself, 
 to renew your application to Lord Grenville on this subject. 
 Perhaps a change of temper may be produced by a change of 
 circumstances ; and there may be a state of things in which you 
 may perceive a disposition favorable to the accomplishment 
 of an object which ought to be desired by both nations, be 
 cause it is just in itself, and because it will remove a subject of 
 controversy, which may, in the course of events have a very 
 unhappy influence on that good understanding and friendly 
 intercourse, which it is the interest of both to preserve. 
 
 The note of the i8th of April, addressed to you by Lord 
 Grenvelle, stating the determination of the British cabinet, not 
 to modify, but to reject, without discussion, the explanatory 
 articles proposed by you on the part of the United States, as 
 sumes, as the base of its decision, a principle not only so dif 
 ferent from those admitted by this Government, but so dif 
 ferent from those recognized by both nations in the treaty 
 of amity negotiated between them, and which ought, there 
 fore, to be adhered to in all explanations of that treaty, as to 
 warrant a hope that the determination announced in that note 
 may not be unalterable. 
 
 His Lordship assumes as a fact that " the fourth article of 
 the treaty of peace not having been duly executed on the part 
 of the United States, the British Government withheld the de 
 livery of the forts on the frontier of Canada, in order that 
 
DOCTRINES OF JOHN MARSHALL 73 
 
 these might serve as a pledge for the interests and rights se 
 cured to the British creditors under tHat article." 
 
 But this is a fact which the American Government has ever 
 controverted, and which has never yet been established. 
 
 Without entering into the always unavailing and now im 
 proper discussion of the question, which nation committed 
 the first fault, it ought never to be forgotten that the treaty in 
 which the claim of the British creditors, on the United States 
 originated, was avowedly entered into for the purpose of 
 terminating the difference between the two nations " in such a 
 manner as, without reference to the merits of their respective 
 complaints and pretentious, may be the best calculated to pro 
 duce mutual satisfaction and good understanding." 
 
 In questions growing out of such a treaty, neither nation 
 can be permitted to refer to and decide the merits of those 
 respective complaints and pretensions, by asserting that the 
 other, and not itself, has committed the first fault. 
 
 Lord Grenville, then, proceeds on the idea that the com 
 missioners appointed by the American Government have with 
 drawn from the Board, merely because awards were rendered 
 against their opinion, and on claims which they believed to be 
 unjust. 
 
 But this idea is neither warranted by the conduct or declara 
 tion of the American Commissioners, nor of the Government 
 which appointed them. It has been, and still is, expressly dis 
 avowed. The commissioners and their Government acquiesced 
 under opinions which they conscientiously believed to be 
 formed on erroneous principles, but on principles submitted 
 by the treaty to their decision. Awards conforming to such 
 opinions, unless by mutual consent the subject shall assume 
 some other form, will be paid by the United States. It was 
 not until a majority of the Board had proceeded to establish 
 a system of rules for the Government of their future decisions, 
 which, in the opinion of this Government, clearly compre 
 hended a vast mass of cases never submitted to their consid 
 eration, that it was deemed necessary to terminate proceed 
 ings believed to be totally unauthorized, and which were con 
 ducted in terms and in a spirit only calculated to destroy all 
 harmony between the two nations. 
 
 We understand the treaty differently from what Lord Gren 
 ville would seem to understand it, when he says the decision 
 
74 THE POLITICAL AND ECONOMIC 
 
 of the Board, constituted according to the provisions of that 
 instrument, " was expressly declared to be in all cases final 
 and conclusive." 
 
 These terms have never been understood by us as authoriz 
 ing the arbiters to go out of the special cases described in the 
 instrument creating and limiting their powers. The words 
 " all cases " can only mean those cases which the two nations 
 have submitted to reference. These are described in the pre 
 ceding part of the article, and this description is relied on, by 
 the United States, as constituting a boundary, within which 
 alone the powers of the commissioners can be exercised. This 
 boundary has, in our judgment, been so totally prostrated, that 
 scarcely a trace of it remains. The reasoning on which we 
 have formed this judgment it would be unnecessary to detail 
 to you, because you are in perfect possession of it. 
 
 Believing the British cabinet disposed to act justly and 
 honorably in a case in which we conceive their reputation, as 
 well as ours, to be concerned, we have been confident in the 
 opinion, that to obtain their serious attention to the subjects 
 of difference between the two nations, was to secure the es 
 tablishment of that reasonable and liberal construction of the 
 article for which America has contended. We shall abandon 
 this opinion with reluctance and regret. 
 
 Although the President decidedly prefers the amicable ex 
 planations which have been suggested to any other mode of 
 adjusting the differences which have arisen in executing the 
 sixth article of our treaty with Great Britain, yet it is by no 
 means the only mode to which he is willing to resort. He 
 does not even require that you shall press this proposition in 
 a manner which, in your judgment, may lessen the probability 
 of settling existing differences, or further than may comport 
 with the interests of the United States. Your situation, your 
 full and near view of all the circumstances which can influ 
 ence the negotiation, enable you to decide more certainly than 
 can be done on this side of the Atlantic, on the precise course 
 which it may be most advantageous to pursue. To your dis 
 cretion, therefore, the President entirely submits this part of 
 the subject. 
 
 If the explanatory articles so much desired by the United 
 States be unattainable, the substitution of a gross sum, in full 
 compensation of all claims, made or to be made on this Gov- 
 
DOCTRINES OF JOHN MARSHALL 75 
 
 ernment, under the sixth article of our treaty of amity, com 
 merce, and navigation with His Britannic Majesty, is deemed 
 the most eligible remaining mode of accommodating those 
 differences which have impeded the execution of that article. 
 
 It is apparent that much difficulty will arise in agreeing on 
 the sum which shall be received as compensation. The ideas 
 of the two Governments, on this subject, appear so different, 
 that, without reciprocal sacrifices of opinion, it is probable they 
 will be as far from agreeing on the sum which ought to be 
 received, as on the merits of the claims for which it will be 
 paid. This difficulty is, perhaps, increased by the extravagant 
 claims which the British creditors have been induced to file. 
 Among them are cases believed to be so notoriously un 
 founded, that no commissioners retaining the slightest degree 
 of self-respect, can establish them. There are many others 
 where the debtors are as competent to pay as any inhabitants 
 of the United States ; and there are others where the debt has 
 been fairly and voluntarily compromised by agreement between 
 the creditor and debtor. There are even cases where the 
 money has been paid in specie, and receipts in full given. I 
 do not mention these distinct classes as comprehending all the 
 cases of claims filed, which can never be allowed; but as ex 
 amples of the materials which compose that enormous mass of 
 imagined debt, which may, by its unexamined bulk, obstruct a 
 just and equitable settlement of the well-founded claims which 
 really exist. 
 
 The creditors are now proceeding, and, had they not been 
 seduced into the opinion that the trouble and expense insep 
 arable from the pursuit of old debts might be avoided by one 
 general resort to the United States, it is believed they would 
 have been still more rapidly proceeding in the collection of the 
 very claims, so far as they are just, which have been filed with 
 the commissioners. They meet with no obstructions, either of 
 law or fact, which are not common to every description of 
 creditors, in every country, unless the difficulty, with respect 
 to interest during the war, may be so denominated. Our 
 judges are even liberal in their construction of the fourth 
 article of the treaty of peace, and are believed, in questions 
 growing out of that treaty, to have manifested no sort of 
 partiality for the debtors. Indeed, it is believed that, with the 
 exception of the contested article of war, interest, and possibly, 
 
76 THE POLITICAL AND ECONOMIC 
 
 of claims barred by the act of limitations during the war, the 
 United States are justly chargeable with the debts of only 
 such of their citizens as have become insolvent subsequent to 
 the peace, and previous to the establishment of the federal 
 courts. This opinion is founded on a conviction that our 
 judges give to the fourth article of the treaty of peace a con 
 struction as extensive as ought to be given to it by commis 
 sioners appointed under the sixth article of the treaty of amity, 
 commerce, and navigation. 
 
 Those who have attended most to this subject are of opinion 
 that the sum which might properly be awarded against the 
 L T nited States would fall far short of any estimate which has 
 probably been made of it in England, or by the British creditors 
 or agents in this country. We are, however, sensible that 
 commissioners, acting within their powers, may extend the 
 sum further than justice or a fair construction of the article 
 would extend it ; and we have been taught to apprehend a con 
 struction, of which, at the ratification of the treaty, no fear 
 was entertained. From this persuasion, and from a solicitude 
 to perform what even rigid and unfavorable judges may sup 
 pose to be enjoined by good faith, the interests of the United 
 States may require, and the President is, therefore, willing, 
 that the agreement should not be strictly limited by the sum 
 for which, in our opinion, we ought to be liable. He will be 
 satisfied with four millions of dollars. He will not consent to 
 exceed one million sterling. 
 
 If a gross sum, in satisfaction of all other claims, be ac 
 cepted, you will of course stipulate for the lowest possible sum, 
 and for the most favorable installments which may be attain 
 able. 
 
 Should it be found impossible to negotiate reasonable ex 
 planatory articles, or to agree on a sum to be received as com 
 pensation for the claims of the creditors, much doubt is enter 
 tained concerning the proposition for new modelling the 
 Board, as proposed by the British minister. While the Gov 
 ernment itself professes to approve the conduct of its late 
 commissioners, much fear is entertained that their successors 
 may bring with them those extravagant and totally inadmis 
 sible opinions which have dissolved the past, and will most 
 probably dissolve any future Board. Before the United States 
 proceed to take a new step in a case where experience has done 
 
DOCTRINES OF JOHN MARSHALL 77 
 
 so much to teach them caution, some assurances of the temper 
 in which the commissioners to be appointed will meet ought to 
 be received. And yet we are not satisfied that good faith does 
 not require that, notwithstanding the past, we should consent 
 to make a second effort for the execution of the sixth article of 
 the treaty, in the forms it has prescribed. 
 
 On this part of the subject, however, the President has come 
 to no determination; so soon as his decision shall have teen 
 made it shall be communicated to you. 
 
 With very much respect, &c., 
 
 J. MARSHALL. 45 
 
 J. MARSHALL, SECRETARY OF STATE, TO SAMUEL 
 SITGREAVES, ESQUIRE, LONDON 
 
 DEPARTMENT OF STATE, December 2, 1800. 
 DEAR SIR: 
 
 I have had the pleasure of receiving your letters to the 
 2Qth of September, and among them that of the 23d, enclosing 
 a copy of your letter of the 22d of April, the original of which 
 had unfortunately miscarried. 
 
 It is probable that, before this can reach you, the negotiation 
 respecting the sixth article of our treaty of amity, commerce, 
 and navigation with Great Britain will have terminated, and 
 that Mr. King will have come to some agreement with Lord 
 Grenville, or will be able to state precisely the ultimata of the 
 British cabinet on this subject. Should it, contrary to our 
 expectation, remain open, the President is of opinion that 
 informal explanations may be received in lieu of the articles 
 required, provided sufficient assurances acompany them that 
 the commissioners, on the part of His Britannic Majesty will, 
 in the true spirit of conciliation, conform to those explanations. 
 
 The idea suggested to Lord Grenville by Mr. King, of send 
 ing over confidential characters to the United States, with 
 power to make arrangements for facilitating the just and im 
 partial execution of the treaty, and with an eventual appoint 
 ment as commissioners, is a valuable one. If no positive agree 
 ment can be made which will enable us to enter again on the 
 execution of the sixth article without submitting to injurious 
 and disgraceful imposition, this idea may perhaps be so im- 
 
 * 5 This letter is printed in the " American State Papers," Vol. II, Class 
 I, Foreign Relations, pp. 386-387. 
 
78 THE POLITICAL AND ECONOMIC 
 
 proved as to become the foundation of a reasonable accommo 
 dation. It is certainly recommended by the probabilities you 
 have suggested. 
 
 If the system of informal explanation should be adopted, and 
 the new Board be constituted, in the mode intimated by Lord 
 Grenville, there will undoubtedly be considerable difficulty in 
 agreeing on rules which shall guide its proceedings, and in 
 obtaining security that these rules will not be departed from. 
 The explanatory articles which before your departure were 
 digested by -this Government, and committed to you, are be 
 lieved to be a liberal as well as just construction, and would 
 be, therefore, with reluctance receded from : indeed, there are 
 among them some from which we never ought to recede. 
 Such, for example, as that, to charge the United States, the 
 British creditor must bring his case completely within the 
 treaty, and not require that the United States should furnish 
 evidence to discharge themselves from every claim which may 
 be at present, or, on the signature of the treaty of amity, may 
 have been unpaid. Such a construction appears to us so totally 
 unreasonable, that we should never have deemed it necessary to 
 guard against it, had not the principle been already asserted, 
 and it is of course a construction to which we never can and 
 never ought to submit. Other principles were insisted on 
 which seem to us not less objectionable. But if it shall be 
 found that a new Board is to be resorted to, it will become 
 necessary to revise the instructions which have been given, and 
 to modify them so far as a proper respect for justice and our 
 own character will permit. 
 
 The President allows you to return to the United States as 
 soon as the negotiation shall have taken a turn which in your 
 opinion may render your longer continuance in England un 
 necessary, or so soon as you shall have communicated fully 
 to Mr. King all the ideas on the interesting subject of your mis 
 sion, which your intimate acquaintance with it has enabled you 
 to acquire. 
 
 With vry much respect and esteem, I am, sir, &c., 
 
 J. MARSHALL. 46 
 
 SAMUEL SITGREAVES, ESQ., LONDON. 
 
 46 The above letter is printed in the " American State Papers," Vol. II, 
 pp. 388, 389. Class i, " Foreign Relations." 
 
DOCTRINES OF JOHN MARSHALL 79 
 
 J. MARSHALL, SECRETARY OF STATE, TO RUFUS KING, 
 
 ESQUIRE 
 
 DEPARTMENT OF STATE, December 4, 1800. 
 DEAR SIR: 
 
 Your letters to No. 85, inclusive, have been received. 
 
 In my No. 2 I stated to you the opinion of the President 
 that an adjustment, by explanatory articles of the differences 
 which arose on executing the treaty with Great Britain, was 
 preferred to the stipulation of a sum in gross, to be paid in 
 lieu of the compensation to creditors demandable from the 
 United States. 
 
 This opinion is still retained. But it has been suggested 
 that, however unreasonable the principles asserted by the Brit 
 ish commissioners may be, it will be difficult, perhaps impos 
 sible, to induce the British cabinet formally to abandon them. 
 That the same thing may probably be obtained in an informal 
 way, which would be withheld if required in the shape of a 
 solemn public stipulation. 
 
 Under the impression that this may be the fact, the President 
 directs me to inform you that an informal agreement, provided 
 it be perfectly understood, will be satisfactory to this Gov 
 ernment. 
 
 If, however, on any such agreement, a new Board should 
 be constituted it is of the last importance that the persons 
 appointed to act as commissioners should possess dispositions 
 inclined to conciliation, and characters which impress you with 
 a favorable opinion of the impartiality to be expected in their 
 decisions. These are requisites, the materiality of which we 
 have been taught by experience, and on them must greatly 
 depend our assent to another Board. 
 
 If you have brought the negotiations to a conclusion respect 
 ing the sum in gross mentioned in a former letter, or if it is in 
 such a train that no change can without embarrassment, be 
 made, it is not intended to derange or unsettle the business. 
 But if no agreement has been concluded, or has progressed so 
 far as to pledge the United States, it is decidedly the judgment 
 of the President that it will be most advisable to execute the 
 treaty in the manner originally agreed on, provided satis 
 factory informal assurances can be obtained, that we shall not 
 be subjected, by a majority of the Board, to an enormous 
 burthen not imposed by the original contract. 
 
80 THE POLITICAL AND ECONOMIC 
 
 If persons could be deputed to make arrangements here, for 
 facilitating the execution of the treaty, with an eventual ap 
 pointment as commissioners, some difficulties might perhaps 
 be surmounted which, at present, appear very considerable, and 
 the business might be greatly expedited. 
 
 As we cannot know the precise state of the negotiation, 
 it is impossible to do more than to communicate, in general 
 terms, the course which the President most wishes it to 
 take. Having done this, to your judgment it must be submit 
 ted. 
 
 The most desirable plan of accommodation is by public ex 
 planatory articles, placing the treaty on its true principles, in 
 terms not easily to be misunderstood. 
 
 Second to this is the system of informal explanation, by 
 which we may be enabled, without great injustice, to execute 
 the treaty in the mode originally designed. If, in neither the 
 one way nor the other, a new Board can be so constituted as to 
 comply with the engagements we have made according to their 
 real import, without exposing the United States to the immense 
 losses threatened by that which has been dissolved, then the 
 stipulation for a sum in gross will be deemed more eligible 
 than to permit things to remain in their present unsettled sit 
 uation. 
 
 We are surprised that, at the date of your No. 85, no 
 letter on this subject had been received from this Depart 
 ment. 
 
 With the most respectful esteem, &c., 
 
 J. MARSHALL. 47 
 
 RUFUS KING, ESQ. 
 
 LETTER 48 FROM JOHN MARSHALL TO THE HON. 
 DUDLEY CHASE 
 
 WASHINGTON, February 7, 1817. 
 SIR: 
 
 Your letter, enclosing a copy of the bill " to provide for re 
 ports of the decisions of the Supreme Court," in which you do 
 
 47 The above letter is printed in the " American State Papers/ Vol. II, 
 p. 339, Class i. 
 
 48 The above letter is printed in the " American State Papers," Class 
 X, Miscellaneous, Vol. II, pp. 419-420, Documents Legislative and Execu 
 tive, published by Gales and Seaton, Washington, 1834. 
 
DOCTRINES OF JOHN MARSHALL 81 
 
 me the honor to request, for the committee, " my views relative 
 to the object and utility of the proposed act," was yesterday 
 received, and communicated to the judges. 
 
 We all concur in the opinion that the object of the bill is in 
 a high degree desirable. 
 
 That the cases determined in the Supreme Court should be 
 reported with accuracy and promptness, is essential to correct 
 ness and uniformity of decision in all the courts of the United 
 States. It is also to be recollected that from the same tribunal 
 the public receive that exposition of the constitution, laws, 
 and treaties of the United States as applicable to the cases of 
 individuals which must ultimately prevail. It is obviously im 
 portant that a knowledge of this exposition should be attainable 
 by all. 
 
 It is a minor consideration, but not perhaps to be entirely 
 overlooked, that, even in cases where the decisions of the Su 
 preme Court are not to be considered as authority except in the 
 courts of the United States, some advantage may be derived 
 from their being known. It is certainly to be wished that inde 
 pendent tribunals having concurrent jurisdiction over the same 
 subject should concur in the principles on which they determine 
 the causes coming before them. This concurrence can be ob 
 tained only by communicating to each the judgments of the 
 other, and by that mutual respect which will probably be 
 inspired by a knowledge of the grounds on which their judg 
 ments respectively stand. On great commercial questions, 
 especially, it is desirable that the judicial opinions of all parts 
 of the Union should be the same. 
 
 From experience, the judges think there is much reason to 
 apprehend that the publication of the decisions of the Supreme 
 Court will remain on a very precarious footing if the reporter 
 is to depend solely on the sales of his work for a reimbursement 
 of the expenses which must be incurred in preparing it, and for 
 his own compensation. The patronage of the Government is 
 believed to be necessary to the secure and certain attainment of 
 the object. 
 
 Law reports can have but a limited circulation. They rarely 
 gain admission into the libraries of other than professional 
 gentlemen. The circulation of the decisions of the Supreme 
 Court will probably be still more limited than those of the courts 
 of the States, because they are useful to a smaller number of the 
 
82 THE POLITICAL AND ECONOMIC 
 
 profession. Only a few of those who practice in the courts of 
 the United States, or in great commercial cities, will often 
 require them. There is, therefore, much reason to believe that 
 no reporter will continue to employ his time and talents in pre 
 paring those decisions for the press after he shall be assured 
 that the Government will not countenance his undertaking. 
 
 With very great respect, I am, sir, your obedient servant, 
 
 J. MARSHALL. 
 
 THE HON. DUDLEY CHASE. 
 
 LETTER TO RICHARD SODERSTROM, ESQ. 
 
 WASHINGTON, November 26, 1800. 
 SIR: 
 
 I have received your letters of the 24th and 25th instant, 
 accompanying one from the Governor General of the Danish 
 West India islands, bearing date of the 6th of August last. 
 
 Be assured, sir, that the Government of the United States 
 respects, as it ought to do, the friendship and flag of His Danish 
 Majesty, and will not intentionally commit an act which may 
 insult the one, or diminish the other. If, in any instance, our 
 cruisers have violated a really neutral flag, they have, in doing 
 so, departed from the instructions under which they sail. 
 
 It is not, however, to be disguised, that means have been 
 devised by which the Danish flag has been used in the West 
 Indies for purposes which we believe His Danish Majesty 
 would not countenance. 
 
 I have communicated the letters from yourself and the Gov 
 ernor General of the Danish West India islands, to the Secre 
 tary of the Navy. He informs me that Lieutenant Maley has 
 been dismissed the service principally on account of the im 
 proper manner in which he has conducted himself toward 
 neutrals. 
 
 With respect to the particular case of the Mercator, it is cer 
 tainly advisable to prosecute an appeal. If she was really a 
 neutral bottom, she will not, it is presumed, be condemned. 
 Without deciding absolutely that the United States will or will 
 not consent, when the case shall be ultimately decided, to pay 
 
 49 The above letter is printed in the " American State Papers," Class I, 
 Vol. III. " Foreign Relations/ p. 344. 
 
DOCTRINES OF JOHN MARSHALL 83 
 
 for the vessel and cargo if confiscated, we are certainly not 
 sufficiently informed at present to take any responsibility 
 on ourselves, in the event of an unfavorable issue of that 
 affair. 
 
 J. MARSHALL. 
 
 LETTER FROM JOHN MARSHALL TO R. KING 
 
 RICHMOND, April 25, 1706. 
 DEAR SIR: 
 
 I take the liberty to avail myself of your aid for forwarding 
 to Mr. Hamilton the inclosed letter. 51 
 
 The ruling party of Virginia are extremely irritated at the 
 vote of today and will spare no exertion to obtain a majority 
 in other counties. Even here they will affect to have the 
 greater number of freeholders and have set about counter 
 Resolutions to which they have the signatures of many re 
 spectable persons, but of still a greater number of mere boys ; 
 and altho some caution has been used by us in excluding 
 those who might not be considered authorized to vote, they 
 will not fail to charge us with having collected a number of 
 names belonging to foreigners and to persons having no prop 
 erty in the place. The charge is as far untrue as has perhaps 
 ever happened on any occasion of the sort. We could, by 
 resorting to that measure, have doubled our list of petitioners. 
 
 I have endeavored to take means to procure similar appli 
 cations from various parts of the State. Exitus in dubio 
 est. 
 
 With very much respect & esteem, &c. 
 
 J. MARSHALL. 
 
 50 The letter to Hamilton here mentioned is of the same date as the 
 above, and may be found in " Works of Hamilton," Vol. VI, p. 108. It 
 relates to the feeling in Virginia relative to the question of the adoption 
 of Jay s Treaty, and of the temper of the House of Representatives, es 
 pecially of the Virginia members, who bitterly opposed its ratification ; it 
 also speaks of the meeting called that day in Richmond by those who 
 desired the ratification of the treaty, saying that a resolution had been 
 passed by a decided majority, after long discussion, " that the welfare and 
 honor of the nation required us to give full effect to the treaty negotiated 
 with Britain." He says further : " I think it would be very difficult, 
 perhaps impossible, to engage Mr. H. (probably Mr. Hamilton) on the 
 right side of this question." 
 
 51 " Life and Correspondence of Rufus King," Vol. II, pp. 45-46. 
 
84 THE POLITICAL AND ECONOMIC 
 
 LETTER" FROM J. MARSHALL TO R. KING 
 
 RICHMOND, May 24, 1796. 
 DEAR SIR : 
 
 Mr. Henry has at length been sounded on the subject you 
 committed to my charge. Genl. Lee and myself have each con 
 versed with him on it, tho without informing him particularly 
 of the persons who authorized the communication. He is un 
 willing to embark in the business. His unwillingness, I think, 
 proceeds from an apprehension of the difficulties to be encoun 
 tered by those who shall fill high Executive offices. 
 
 With very much respect and esteem &c. 
 
 J. MARSHALL. 
 Endorsed by R. King : 
 
 Ansd. i June. -regretting &c and observing that it wd. be 
 requisite to fix on another person without delay. 
 
 LETTER^ FROM J. MARSHALL TO RUFUS KING 
 
 RICHMOND, May 5, 1802. 
 DEAR SIR : 
 
 This unfortunate accomplishment of the long & difficult 
 negotiation with which you were charged, is peculiarly gratify 
 ing to those who unite a knowledge of the embarassing circum 
 stances attending it, to a real wish that your embassy may be 
 as honorable to yourself as it has been useful to our coun 
 try. 
 
 You have effected what, in America, has been heretofore 
 deemed impracticable. You have made a treaty with one of 
 the great rival Nations of Europe, which is not only accept 
 able to all, but the merit of which is claimed by both parties. 
 The advocates of the present administration ascribe to it great 
 praise, for having, with so much dexterity & so little loss, 
 extricated our country from a debt of twenty-four million of 
 dollars in which a former administration had involved it ; while 
 the friends of the ancient state of things, are not slow in add 
 ing the present happy accomodation to the long list of their 
 Merits. 
 
 Yet amidst this universal approbation so correctly given to 
 an adjustment of differences which unquestionably deserve it, 
 
 52 Letter in " Life and Correspondence of R. King," Vol. II, p, 48. 
 ., Vol. IV, pp. 116-118. 
 
DOCTRINES OF JOHN MARSHALL 85 
 
 the mortifying reflection obtrudes itself, that the reputation of 
 the most wise and skillful conduct depends, in this our capri 
 cious world, so much on accident. Had Mr. Adams been re- 
 elected President of the United States, or had his successor 
 been a gentleman whose political opinions accorded with those 
 held by the preceding executive, a very different reception, I 
 still believe, would have been given to the same measure. The 
 payment of a specific sum would then have been pronounced, 
 by those who now take merit to themselves for it, a humiliating 
 national degradation, an abandonment of national interest, a 
 free will offering of millions to Britain for her grace & favor, 
 by those who sought to engage in war with France, rather than 
 repay, in part, by a small loan to that republic, the immense 
 debt of gratitude we owe her. 
 
 Such is, & such I fear will ever be human justice! 
 
 When I recollect the advantage actually gained by Great 
 Britain, on having obtained the fifth commissioner, I am truly 
 surprised at the sum agreed on. I believe it is as much, & not 
 more than, in strict justice, ought to be paid, but, after the 
 impressions made by the late board of commissioners I really 
 apprehended strict justice to be unattainable; & I think, not 
 only, that great credit is due to the American Negotiator for 
 having reduced this enormous claim to a reasonable amount, 
 but that, all circumstances considered, some sentiment of 
 respect should be felt for the moderation & equity of the 
 English Minister. 
 
 The national tribunals, I hope will continue to manifest, 
 in the exposition of the treaty of peace, " that share of pru 
 dence," which is required by justice, & which can alone pre 
 serve the reputation of the nation. 
 
 Public opinion in this quarter of the union has sustained no 
 essential change. That disposition to coalesce with what is, 
 now, the majority in America as well as in this state, which was 
 strongly display d by the minority twelve months past, exists 
 no longer. It has expired. But the minority is only recover 
 ing its strength & firmness. It acquires nothing. 
 
 Our political tempests will long, very long, exist after those 
 who are now toss d about by them shall be at rest. 
 
 Your obedt. Servt. 
 
 J. MARSHALL. 
 
86 THE POLITICAL AND ECONOMIC 
 
 A LETTER OF MARSHALL TO JEFFERSON, 
 DECEMBER 12, 1783 
 
 In the centennial period of the Lewis and Clark expedition 
 much interest was shown in one of the manuscripts in the 
 Draper Manuscript Collection in the Wisconsin Historical 
 Library, a note from Thomas Jefferson, dated Annapolis, 
 December 4, 1783, to General George Rogers Clark, suggest 
 ing to the latter an exploration toward the Pacific Ocean, sim 
 ilar in character to that which Jefferson twenty years later 
 succeeded in inducing Meriwether Lewis and William Clark 
 (younger brother of George) to undertake. This letter is 
 printed in the " American Historical Review," Vol. Ill, p. 673, 
 and has been printed in several other magazines. Some time 
 ago Prof. R. E. N. Dodge, of the University of Wisconsin, 
 presented the Wisconsin Historical Library with an autograph 
 letter of Chief Justice John Marshall, that throws additional 
 light on this famous letter of Jefferson to George Rogers 
 Clark. This letter, one of the few that were written to Jeffer 
 son by Marshall, was written at Williamsburg, Va., and was 
 addressed to Thomas Jefferson. In it Marshall, w r ho was at 
 that time a member of the state executive council, acknowl 
 edges the receipt of a letter written by Jefferson on the fifth 
 instant, inclosing " letters to General Clark and Mr. Banks " 
 which " I yesterday delivered." General Clark was at that 
 time in Williamsburg, trying to push his claims for reimburse 
 ment for money spent in his celebrated campaign against Vin- 
 cennes. This letter of Marshall to Jefferson is noteworthy 
 because of its connection with the latter s early project of an 
 exploration through the Spanish Domain beyond the Missis 
 sippi, and for its characteristic allusions to Patrick Henry, Col. 
 R. H. Lee, Colonel Nicholas, and others famous in that day. 
 
 The letter is as follows : 
 
 WILLIAMSBURG, VA., Dec. i2th, 1783. 
 DEAR SIR: 
 
 The letters to Genl Clark and Mr. Banks enclosed in yours 
 of the 5th. inst. I yesterday deliver d. Should a letter to Majr. 
 Crittenden arrive by the next post I can give it a certain and 
 immediate conveyance. I gave you in my last some account 
 of the proceedings of the Assembly. The Commutable bill has 
 
DOCTRINES OF JOHN MARSHALL 87 
 
 at length pass d and with it a suspension of the collections of 
 taxes till the first of January next. I told you the principal 
 speakers for and against the measure. Col. R. H. Lee has not 
 attended this Session. This is not all. His services in the As 
 sembly are lost forever. Tis conjectur d that Col. Harry Lee 
 of the Legionary corps, will take his place. You know the 
 character of that Gentleman better than I do and can best de 
 termine whether the public will be injur d by the change. The 
 idea of rendering Members of Congress eligible to the Genl. 
 Assembly has not been taken up. Indeed the attention of the 
 house since the passage of the Commutable bill has been so 
 fix d on the Citizen bill that they have scarcely thought on any 
 other subject. Since the rejection of the bill introduc d by 
 Taylor, Col. Nicholas (politician not fam d for hitting a 
 medium) introduced one admitting into this Country every 
 species of Men except Natives who had borne arms against the 
 state. When the house went into Committee on this bill Mr. 
 Jones introduc d by way of amendment, one totally new and 
 totally opposite to that which was the subject of deliberation. 
 He spoke with his usual sound sense and solid reason. Mr. 
 Henry opposed him. The Speaker replied with some degree 
 of acrimony and Henry retorted with a good deal of tartness 
 but with much temper; tis his peculiar excellence when he 
 altercates to appear to be drawn unwillingly into the contest 
 and to throw in the eyes of others the whole blame on his ad 
 versary. His influence is immense. The house rose for the 
 day without coming to any determination and the bill is yet 
 in suspense. The principal point on which they split is the ex 
 clusion of the Statute Staple Men. I really am uncertain what 
 will be the determination on this subject. 
 
 The Officers will soon begin to survey their lands on the 
 Cumberland. Has Crittenden your Millitary warrant? The 
 report from Congress with respect to the cession has not yet 
 reached us ; of course the assembly can have determined noth 
 ing about it. My Father set out for the western Country about 
 the 5th, of Novr. I have not heard a syllable from Crittenden 
 since his departure. 
 
 As ever I am with the greatest esteem yours 
 
 J. MARSHALL. 
 
 Banks has applied to me for a considerable sum, on your 
 
88 THE POLITICAL AND ECONOMIC 
 
 account but I presume Your letter to him was on that subject. 
 I parry every applicant as well as possible. 
 
 Yours J. M. 
 
 LETTER OF JOHN MARSHALL TO JAMES WILKINSON 
 
 This letter is printed in the " American Historical Review," 
 Vol. XII, pp. 347-348. The publishers acknowledge their in 
 debtedness to Col. Reuben T. Durrett, LL.D., of Louisville, 
 Kentucky, for the letter. At that time Colonel Durrett writes : 
 
 :< This letter was written to Gen. James Wilkinson, at that 
 time a resident of Kentucky, although his name does not appear 
 in the address. His name and address were on the envelope, 
 which has since been destroyed." 
 
 This letter, as Colonel Durrett intimates, shows a kindly 
 feeling between writer and recipient that Humphrey Marshall, 
 the historian (John Marshall s cousin), would hardly have 
 been willing to admit. He also calls attention to the efforts 
 that Col. Thomas Marshall (father of John) made in 1791 
 toward securing Wilkinson s reappointment to the army of the 
 United States. Colonel Marshall, however, it should be said, 
 gives as a reason for this that Wilkinson was a dangerous man 
 while not engaged, but that the danger might be removed by 
 giving him employment. Colonel Durrett suggests that pos 
 sibly John Marshall may have been moved by similar considera 
 tions in trying to obtain for him a passport out of the United 
 States. The first paragraph in regard to the Governor, Ed 
 mund Randolph, is not exactly clear. 
 
 RICHMOND, Jan. 5th, 1787. 
 DEAR SIR: 
 
 It is with a great deal of mortification I tell you that I have 
 failed in obtaining the passport I applied for. On my mention 
 ing the subject to the Governor he said he was acquainted with 
 you and would with great pleasure do anything which was 
 proper to serve you. He took time to consider the subject and 
 after several applications, told me today that to grant the pass 
 port as an official act was entirely improper because it could 
 only extend to the limits of Virginia to which you had a right 
 to go without his permit and that he could not write a private 
 letter of recommendation to the Governor without having some 
 acquaintance with him. On these reasons sir, my application 
 
DOCTRINES OF JOHN MARSHALL 89 
 
 in your favor was rejected. I am much chagrined at my dis 
 appointment. 
 
 I am much indebted to you for the clear and succinct ac 
 count you have given me of the two expeditions against the 
 Indians. I fear with you that so long as you remain con 
 nected with Virginia it will be absolutely impossible to act on 
 any great occasion with reputation or success. Just informa 
 tion from such a distance will never be obtained by govern 
 ment without a solicitude about intelligence which seldom 
 exists in a proper degree on the eve of a separation. You are 
 considered as being certainly about to part with us, and there 
 fore less attention will be given to any regulations respecting 
 your country than if the disunion was not expected. 
 
 All is gloom in the eastern states. Massachusetts is rent 
 into two equal factions and an appeal I fear has by this time 
 been made to the God of battles. Three of the leaders of 
 the opponents to Government have been taken and imprisoned 
 in Boston. The whole force of the party is collected for their 
 relief. The last intelligence gives us reason to fear that be 
 fore this time the attempt to relieve them has been made with 
 the whole power of one party and opposed by the whole power 
 of the other. But of this I suppose you receive better informa 
 tion than I can give you. We have contradictory accounts of 
 the motives and views of the insurgents. We are sometimes 
 informed that they are a British faction supported secretly 
 from Canada, whose immediate object is to overthrow the 
 present and restore the former government, at other times we 
 are told that it is a mere contest for power between Bowdoin 
 and Hancock and that the Hancock faction are aiming at the 
 destruction of all public securities and the subversion of all 
 public faith. Whatever may be the cause of these dissentions 
 or however they may terminate, in their present operation they 
 deeply affect the happiness and reputation of the United States. 
 They will, however, I presume tend to people the western 
 world if you can govrn yourselves so wisely as to present a safe 
 retreat to the weaker party. These violent, I fear bloody dis 
 sensions 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 
 that bright prospect which the revolution in America and the 
 
90 THE POLITICAL AND ECONOMIC 
 
 establishment of our free governments had opened to the 
 votaries of liberty throughout the globe. I fear, and there 
 is no opinion no more degrading to the dignity of man, that 
 these have truth on their side who say that man is incapable 
 of governing himself. I fear we may live to see another 
 revolution. 
 
 I am dear sir, with high esteem and respect, 
 
 Your obed t serv t. 
 
 J. MARSHALL. 
 
 The correspondence of Alexander Hamilton proves that he 
 decided the question of the Presidency. Hamilton wrote a 
 great many letters about the last of 1800 and the first part of 
 1 80 1. He made his decision under circumstances and from 
 motives that show that he was governed solely by the highest 
 and largest considerations of the public welfare. It was at 
 that time clearly ascertained that either Burr or Jefferson would 
 be President. Hamilton seemed to see that it would never do 
 to have Burr President ; he said, " As to Burr, there is nothing 
 in his favor." He also said, " Jefferson is not so dangerous a 
 man by far." 
 
 Hamilton wrote to Morris : 
 
 " I trust the Federalists will not finally be so mad as to vote 
 for Burr. I speak with an intimate and accurate knowledge of 
 character. His elevation can only promote the purposes of 
 the desperate and profligate. If there be a man in the world 
 I ought to hate, it is Jefferson. With Burr I have always been 
 personally well. But the public good must be paramount to 
 every private consideration. My opinion may be freely used 
 with such reserves as you shall think discreet." 
 
 Hamilton also addressed a letter to Marshall, of which no 
 copy is preserved, but there is no doubt but that it was very 
 similar to the one quoted above. Marshall replied to this letter 
 at once as follows : 
 
 January ist, 1801. 
 DEAR SIR : 
 
 I received this morning your letter of the 26th of December. 
 It is, I believe, certain that Jefferson and Burr will come to the 
 House of Representatives with equal votes. The returns have 
 been all received, and this is the general opinion. 
 
 Being no longer in the House of Representatives, and conse- 
 
DOCTRINES OF JOHN MARSHALL 91 
 
 quently compelled by no duty to decide between them, my own 
 mind had scarcely determined to which of these gentlemen the 
 preference was due. To Mr. Jefferson, whose political char 
 acter is better known than that of Mr. Burr, I have felt almost 
 insuperable objections. His foreign prejudices seem to me 
 totally to unfit him for the chief magistracy of a nation which 
 cannot indulge those prejudices without sustaining deep and 
 permanent injury. In addition to this solid and immovable 
 objection, Mr. Jefferson appears to me to be a man who will 
 embody himself with the House of Representatives. By weak 
 ening the office of President he will increase his personal 
 power. He will diminish his responsibility, sap the funda 
 mental principles of the government, and become the leader of 
 that party which is about to constitute the majority of the leg 
 islature. The morals of the author of the letter to Mazzei can 
 not be pure. 
 
 With these impressions concerning Mr. Jefferson, I was in 
 some degree disposed to view with less apprehension any other 
 characters, and to consider the alternative now offered as a 
 circumstance not to be entirely neglected. 
 
 Your representation of Mr. Burr, with whom I am totally 
 unacquainted, shows that from him still greater danger than 
 even from Mr. Jefferson may be apprehended. Such a man 
 as you describe is more to be feared, and may do more imme 
 diate, if not greater, mischief. Believing that you know him 
 well, and are impartial, my preference would certainly not be 
 for him; but I can take no part in this business. I cannot 
 bring myself to aid Mr. Jefferson. Perhaps respect for my 
 self should, in my present situation, deter me from using any 
 influence (if, indeed, I possessed any) in support of either 
 gentleman. Although no consideration could induce me to be 
 the Secretary of State while there was a President whose po 
 litical system I believed to be at variance with my own, yet this 
 cannot be so well known to others, and it might be suspected 
 that a desire to be well with the successful candidate had, in 
 some degree, governed my conduct. 
 
 With you I am in favor of ratifying our treaty with France, 
 though I am far, very far, from approving it. There is, how 
 ever, one principle which I think it right to explain. 
 
 Our envoys were undoubtedly of opinion that our prior 
 treaty with Britain would retain its stipulated advantages, and 
 
92 THE POLITICAL AND ECONOMIC 
 
 I think that opinion correct. Were our convention with any 
 other nation than France, I should feel no solicitude on this 
 subject. But France, the most encroaching nation on earth, 
 will claim a literal interpretation, and our people will decide in 
 her favor. Those who could contend that a promise not to 
 permit privateers of the enemy of France, to be fitted out in our 
 ports, amounted to a grant of that privilege to France, would 
 not hesitate to contend that a stipulation giving to France, on 
 the subject of privateers and prizes, the privileges of the most 
 favored nation, placed her on equal ground with any other 
 nation whatever. In consequence of this temper in our 
 country, I think the ratification of the treaty ought to be ac 
 companied with a declaration of the sense in which it is agreed 
 to. This, however, is only my own opinion. 
 With very much respect and esteem, 
 
 I am, dear Sir, yours obediently, 
 
 J. MARSHALL. 
 
 MARSHALL TO HAMILTON 
 
 WASHINGTON, August 23d, 1800. 
 DEAR SIR : 
 
 I received today your letter of the igth inst, accompanying 
 a memorial from the Governor-General of the Danish West 
 India Islands, respecting the conduct of some of our ships of 
 war. 
 
 This paper shall be immediately communicated to the Secre 
 tary of the Navy. Our dispatches from Paris come no later 
 than the I7th of May. There is nothing in them on which a 
 positive opinion respecting the result of that negotiation can 
 be formed. 
 
 Connecting the then state of things with the European 
 events which have since happened, and with intelligence from 
 America which has since reached them, I shall not be surprised 
 if the paragraph from St. Sebastian should be true. 
 With very much respect and esteem, &c. 
 
 J. MARSHALL. 54 
 
 54 The above letter is printed in " Hamilton s Works," by John C. 
 Hamilton, Vol. VI, p. 460. 
 
DOCTRINES OF JOHN MARSHALL 93 
 
 MARSHALL TO HAMILTON 
 
 RICHMOND, April 25th, 1796. 
 DEAR SIR: 
 
 Yours of the I4th only reached me by the mail this evening. 
 I had been informed of the temper of the House of Representa 
 tives, and we had promptly taken such measures as appeared to 
 us fitted to the occasion. We could not venture an expression 
 of the public mind under the violent prejudices with which it 
 has been impressed, so long as a hope remained, that the House 
 of Representatives might ultimately consult the interest or 
 honor of the nation. But now, when all hope of this has van 
 ished, it was deemed advisable to make the experiment, how 
 ever hazardous it might be. A meeting was called, which was 
 more numerous than I have ever seen at this place ; and after a 
 very ardent and zealous discussion which consumed the day, a 
 decided majority declared in favor of a resolution that the wel 
 fare and honor of the nation required us to give full effect to 
 the treaty negotiated with Britain. This resolution, with a 
 petition drawn by an original opponent of the treaty, will be 
 forwarded by the next post to Congress. The subject will 
 probably be taken up in every county in the State, or at any 
 rate in very many of them. It is probable that a majority of 
 the counties will avow sentiments opposed to ours, but the 
 division of the State will appear to be much more consider 
 able than has been stated. In some of the districts there will 
 certainly be a majority who will concur with us, and that per 
 haps may have some effect. As man is a gregarious animal, 
 we shall certainly derive much aid from declarations in sup 
 port of the constitution and of appropriations, if such can be 
 obtained from our sister States. The ground we take here 
 is very much that of Mr. Hillhouse. We admit the discretion 
 ary constitutional power of the representatives on the subject 
 of appropriations, but contend that the treaty is as completely 
 a valid and obligatory contract when negotiated by the Pres 
 ident and ratified by him, with the assent and advice of the 
 Senate, as if sanctioned by the House of Representatives also 
 under a constitution requiring such sanction. I think it would 
 be very difficult, perhaps impossible, to engage Mr. H. on the 
 right side of this question. If you have any communications 
 
94 THE POLITICAL AND ECONOMIC 
 
 which might promote a concurrence of action, we shall be 
 proud to receive them. 
 
 With much respect and esteem, 
 
 From, dear Sir, your obedient servant, 
 
 JOHN MARSHALL. 55 
 
 At a meeting of the Massachusetts Historical Society held 
 in November, 1900, Mr. Charles C. Smith communicated some 
 unpublished letters of Chief Justice Marshall, and said : 
 
 " In examining the Pickering Papers, to revive my recol 
 lection of the correspondence between Chief Justice Marshall 
 and Colonel Pickering, my eye fell on two letters from the 
 former which it seems worth while to print in full in the 
 proceedings. The first is an answer to two letters from 
 Colonel Pickering, respectively dated January 17 and January 
 24, 1826, the rougn draughts of which are in the Pickering 
 Papers. In them Pickering, among other things, expressed his 
 gloomy forebodings at the extension of slavery, his estimate of 
 the talents and party services of William B. Giles, and his 
 detestation and contempt for the acts and sentiments of Gov 
 ernor Troup, of Georgia." 
 
 Judge Marshall s reply is as follows : 
 
 Col. Timothy Pickering, 
 Salem, Massachusetts. 
 
 Mr. Story. 
 WASHINGTON, March 2oth, 26. 
 
 DEAR SIR: I had the pleasure of receiving your letters of 
 the 1 7th & 23d of Jany by Mr. Story & congratulate you very 
 sincerely on the vigorous health which your letters manifest. 
 It is consoling to think that we may look forward to very ad 
 vanced life with the hope of preserving with health & temper 
 ance so large a share of mental & bodily strength as to make 
 life still desirable & agreeable. 
 
 I concur with you in thinking that nothing portends more 
 calamity & mischief to the Southern States than their slave 
 population. Yet they seem to cherish the evil and to view with 
 immovable prejudice & dislike everything which may tend to 
 diminish it. I do not wonder that they should resist any at 
 tempt, should one be made, to interfere with the rights of 
 
 55 The above letter is printed in " Hamilton s Works," Vol. VI, pp. 108- 
 109. 
 
DOCTRINES OF JOHN MARSHALL 95 
 
 property, but they have a feverish jealousy of measures which 
 may do good without the hazard of harm that is, I think, very 
 unwise. 
 
 All America, I believe, will join you in opinion respecting 
 the late intemperate course of the Governor of Georgia. I 
 very much fear that the embarassment into which the purchase 
 from the Creeks has thrown us will be prolonged by a rejection 
 of the last treaty. 
 
 You are undoubtedly right in supposing Mr. Giles to be a dis- 
 conted man. He was unquestionably a very poweful de 
 bater on the floor of either branch of the legislature, & has 
 seen men placed before him by the party which he has served 
 very effectually to whom he gave precedence very reluctantly. 
 He fell out with Virginia too, but seems now determined to 
 write himself again into favour. His health has been for some 
 years very bad, but he is now getting rather better and would 
 be very glad to come forwards once more in political life. He 
 is undoubtedly desirous of recommencing his career as a public 
 man. He may probably be successful as he undoubtedly 
 possesses & is believed to possess, considerable talents and 
 avows opinions which are very popular in Virginia. 
 
 Your recollection of events which took place for the last 
 twenty years is very accurate, and you replace in my memory 
 many things which I had almost forgotten. There are not 
 many who retain them as fresh as you do, and I am persuaded 
 that they will soon be entirely lost. Those, who follow us will 
 know very little of the real transactions of our day, and will 
 have very untrue impressions respecting men & things. Such 
 is the lot of humanity. 
 
 Farewell. With warm wishes for your health & happiness, 
 and with great and respectful esteem, 
 
 I am, dear Sir, your obedt. 
 
 J. MARSHALL. 
 
 The second letter is in answer to a very long and elaborate 
 letter from Colonel Pickering, describing General Washing 
 ton s military character and capacity as being " strikingly de 
 ficient in quick discernment and instant decision." This letter, 
 which fills nearly thirty quarto pages, is not mentioned in Mr. 
 Upham s " Life of Pickering " ; but it seems to have been care 
 fully copied by Pickering for publication, and prefixed to his 
 
96 THE POLITICAL AND ECONOMIC 
 
 copy are a title page and an " Advertisement/ at the close of 
 which he writes, referring to Judge Marshall : " I thought 
 that candour towards so excellent a man and my friend, as 
 well as a regard to my own reputation, required me to state 
 explicitly to Judge Marshall some principal facts on which my 
 opinion of Washington s military character was formed ; and 
 also to glance at some incidents tending to show that he was 
 not endowed with the talents of a statesman, as I knew that 
 he did not possess those of a general." 
 
 Judge Marshall s letter acknowledging the receipt of this 
 letter is a fine model of courteous and cautious restatement of 
 opinion for anyone who is determined not to be drawn into 
 a useless controversy. Of this Pickering was fully aware, 
 and in a letter to Marshall written nearly a year later 
 he says : ( The amicable tenor of your letter of the I4th 
 (i5th) of March was highly gratifying to me," and again, 
 " I was happy that you took in good part my frank statement 
 of facts representing General Washington." 
 
 Judge Marshall writes : 
 
 Col. Timothy Pickering, Mr. Justice Story. 
 
 Salem, 
 
 Massachusetts. 
 
 WASHINGTON, March i5th, 1827. 
 MY DEAR SIR : 
 
 I was much obliged by your favor of the I4th of Feby, 
 through our friend Mr. Mercer. I am always gratified at be 
 ing recollected by my old friends, for I find myself incapable 
 of making new ones. 
 
 I have seen in the papers the discussions between my brother 
 Johnson and yourself respecting Count Pulaski and the bat 
 tle of Germantown. It is not a little gratifying to us who are 
 treading close upon your heels to observe how firmly you 
 step & how perfectly you retain your recollection. You are a 
 little before me, and I find myself almost alone in the world. 
 With the exception of Judge Peters, yourself, and Mr. Wol- 
 cot, I can scarcely find any person who was conspicuous on 
 the great theatre of our country when I first began to mix in 
 public affairs. Things are very much changed as well as men. 
 
 Is it probable that you will ever travel as far south as Wash 
 ington? Few things would give me so much pleasure as to 
 
DOCTRINES OF JOHN MARSHALL 97 
 
 see you, but that is a pleasure which I scarcely dare promise 
 myself. It is probable that the line which circumscribes your 
 movements to the south will never intersect that which bounds 
 me on the north. 
 
 You give a great many interesting anecdotes of General 
 Washington which serve to develope his character. Your 
 opportunities of personal observation enable you to take a near 
 view of the man. I have seen him only at a distance. I have 
 looked at him through those actions which were the result of 
 mature deliberation and consultation with those to whom he 
 gave his confidence. The conclusion to which this view of 
 him has conducted me is extremely favourable to his judg 
 ment, his wisdom, and his virtue. If he did not possess that 
 rapidity of decision which distinguishes many men of genius, 
 there seems to have been a solidity in his mind which fitted him 
 in a peculiar manner for occupying the high place he filled in 
 the United States in the critical times in which he filled it. 
 No feature in his character was more conspicuous than his 
 firmness. Though prizing popular favour as highly as it 
 ought to be prized, he never yielded principle to obtain it, or 
 sacrificed judgment on its altar. This firmness of character 
 added to his acknowledged virtue enabled him to stem a tor 
 rent which would have overwhelmed almost any other man, 
 and did, I believe, save his country. 
 
 Such is my impression of Washington, an impression cer 
 tainly not formed on a near view of him, but on a very at 
 tentive consideration of his character, his conduct, and his 
 papers. You could take a closer view of him, especially as a 
 military man, than was in my power, and have consequently 
 better means of judging correctly than I possess. 
 
 With the best wishes for your health and happiness and 
 with sincere and respectful esteem, 
 
 I am, dear Sir, your obedt 
 
 J. MARSHALL. 
 
 OPINIONS OF THE LATE CHIEF JUSTICE OF THE UNITED 
 STATES, JOHN MARSHALL, CONCERNING FREE MA 
 SONRY 
 
 A gentleman in Norfolk County, Mass., supplied the follow 
 ing letter from the late Chief Justice of the United States to 
 the Hon. Edward Everett on the subject of Freemasonry: 
 
98 THE POLITICAL AND ECONOMIC 
 
 RICHMOND, July 22d, 1833. 
 MY DEAR SIR : 
 
 I have received your favor of the i6th, enclosing a printed 
 copy of your letter respecting Masonry to Mr. Atwell, ac 
 companied by printed copies of letters from Gen. Washing 
 ton and Mr. Madison on the same subject. 
 
 Soon after entering the army I was made a Mason. In ad 
 dition to the motives, which usually actuate young men, I 
 was induced to become a candidate for admission into the 
 society, by the assurance that the brotherly love which per 
 vaded it and the duties imposed on its members, might be of 
 great to me in the vicissitudes of fortune to which a soldier 
 was exposed. After the army was disbanded, I found the 
 order in high estimation, and every gentleman I saw in this 
 part of Virginia was a member. I followed the crowd for a 
 time without attaching any importance to its object, or giving 
 myself the trouble to inquire why others did. It soon lost its 
 attraction, and though there are several Lodges in the city 
 of Richmond, I have not been in one of them for more than 
 forty years, except once, on an invitation to accompany Gen 
 eral La Fayette, nor have I been a member of one of them for 
 more than thirty. It was impossible not to perceive the use 
 less pageantry of the whole exhibition. My friend, Mr. Story, 
 has communicated my opinions to you truly. I thought it, 
 however, a harmless plaything, which would live its hour and 
 pass away, until the murder or abstraction of Morgan was 
 brought before the public; that atrocious crime, and I had 
 almost said, the still more atrocious suppression of the testi 
 mony concerning it, demonstrated the abuse, of which the 
 oaths prescribed by the order were susceptible, and convinced 
 me that the institution ought to be abandoned, as one capable 
 of producing much evil, and incapable of producing any good, 
 which might not be effected by safe and open means. I give 
 you my sentiments without reserve, but in confidence. I have 
 attained an age when repose becomes a primary wish. I am 
 unwilling to embark on any tempestuous sea or to engage as a 
 volunteer in any controversy, which may tend to excite the 
 angry passions. I am unwilling to appear in the papers on 
 any question, especially if it may produce excitement. 
 
 The Antimasonic controversy has not crossed the Potomac. 
 With you it has become a party question, which a public man 
 
DOCTRINES OF JOHN MARSHALL 99 
 
 cannot escape, and on which a decent, manly opinion must be 
 firmly and frankly expressed. But I am not a public man; 
 and if I were, many and extravagant are the tests by which we 
 try the fitness of agents for the service of our country. This 
 has not as yet become one of them. Several of my personal 
 friends are Masons ; some few of them more zealous than my 
 self. You will therefore pardon the unwillingness I express 
 that any allusion to this letter should be made in the papers. 
 Receive the assurances of the great and respectful esteem, with 
 which I remain, 
 
 Your obedient, 
 
 J. MARSHALL. 56 
 
 The following statement connecting Marshall with the Ma 
 sonic society appears in the " Vindication of General Wash 
 ington from the stigma of adherence to secret societies by 
 Joseph Ritner, Governor of the Commonwealth of Pennsyl 
 vania, communicated by request of the House of Representa 
 tives to that body on the 8th of March, 1837, with the pro 
 ceedings which took place on its reception " (Boston, printed 
 by Ezra Lincoln) : 
 
 " The annexed pamphlet by Ex-Governor Ritner of Penn 
 sylvania is, strange as the fact may appear, a vindication of 
 the character of the father of his country against the charge 
 of Freemasonry! That Washington was an initiate we do 
 not doubt, as many other respectable individuals have been, 
 among whom may be numbered a Marshall, a Rush, a Wirt, 
 and others; for it has been the policy of the detestable, mur 
 derous society to seduce into their ranks the most respectable 
 members of society, and then to bind them to the most shock 
 ing, anti-christian oaths, and under the still more shocking pen 
 alties of death, in various horrid forms, to keep the secrets of 
 the institution, which chiefly consists, like a band of pirates 
 and robbers, of the signs by which they may be known to each 
 other! It is hardly necessary to add that of 100 initiates 99, 
 though bound by their oaths to silence, have little more to do 
 with the institution, although claimed as a member and 
 brother. Such were brother Washington/ * brother Judge 
 Marshall, and a great number of others who have been hypo- 
 
 56 The above letter and explanatory matter is printed in the " Free 
 masonry Pamphlets," Vol. Ill, Smithsonian Institution. 
 
ioo THE POLITICAL AND ECONOMIC 
 
 critically brought within the pale of Freemasonry. But Wash 
 ington did not die without leaving to his country his warning 
 voice against all obstructions to the execution of the laws, all 
 combinations and associations under whatever plausible char 
 acter. He might, we repeat, have been an initiate, but no 
 freemason, as the reader of the annexed pamphlet will see. 
 That Freemasonry obstructed the execution of the laws in 
 the trial of Masonic culprits in the western counties of New 
 York state by false oaths and every other possible way, there 
 is the most unequivocal evidence. In a word, says the late 
 Myron Holley, speaking of Freemasonry, * more detestable 
 principles cannot be imagined; they excite to crime and were 
 intended for shelter and protection of practical iniquity ! 
 This was literally a truth ; they truly afforded shelter and pro 
 tection to the murderers of William Morgan! But if, as the 
 memorable wretches tell you, that Freemasonry is a virtuous 
 society it is asked why females or ladies are excluded, why in 
 sulted ? Who can read the following oath of a Master Mason, 
 having a mother, wife, or sisters, without the height of in 
 dignation. Furthermore [that is in addition to fifteen other 
 oaths] do I promise and swear that I will not be at the initiat 
 ing, passing, or raising of an old man in dotage, a young man 
 in non-age, an atheist, irreligious libertine, madman, hermaph 
 rodite, woman, or a fool. And again, * Furthermore do I 
 promise and swear that I will not violate the chastity of a 
 Master Mason s wife, mother, sister, or daughter, nor suffer 
 it to be done by others, if in my power to prevent it, I know 
 ing them to be such, thus giving a Master Mason free access 
 to every other woman in society. Such is freemasonry, and 
 but a small part of that diabolical institution. Washington 
 saw not only the folly but the wickedness of such oaths and 
 consequences that might follow from an institution of such a 
 character. And now (1841), would it be believed, an effort 
 is making by despicable or thoughtless individuals to revive it ! 
 Let us then, one and all, frown on the base attempt; let the 
 warning voice of the father of his country be listened to and 
 obeyed; let not a vestige remain of the accursed institution. 
 In a special manner, let that degrading and disgraceful silver 
 plate, which now lies under the corner stone of the Bunker 
 Hill Monument, be removed and the place supplied by some 
 Patriotic Inscription." 
 
DOCTRINES OF JOHN MARSHALL 101 
 
 At the fourth Antimasonic Republican Convention of Massa 
 chusetts Held at BOSTON, Sept. n, 12, and 13, 1833, for the 
 nomination of candidates for Governor and Lieutenant Gov 
 ernor of the Commonwealth, and " for the purpose of con 
 sulting upon the common good, by seeking redress of wrongs 
 and grievances suffered from the secret societies," on motion 
 of Mr. Odiorne, the Officers of the Convention were appointed 
 to communicate to the venerable Chief Justice Marshall, of the 
 United States Supreme Court, the fact that he is publicly 
 held up by Freemasons and by Masonic presses as an ardent 
 advocate of that Institution, which he is represented here as 
 having recently declared to be " a jewel of inestimable value " ; 
 and respectfully to inquire of him whether, as the biographer 
 of Washington, he knows of the existence of any authentic 
 originals or copies of letters addressed by Washington to Ma 
 sonic bodies. See Freemasonry Pamphlets, Smithsonian In 
 stitution, Vol. Ill, p. 43. 
 
 If corroboration were required, it is furnished by the fol 
 lowing letter from Chief Justice Marshall, in reply to one from 
 citizens of Massachusetts inquiring of him whether or not, as 
 biographer of Washington, he knew of the existence of any 
 authentic originals or copies of letters addressed by Washing 
 ton to Masonic bodies. The same persons also inquired 
 whether or not the Chief Justice had declared the institution 
 of Masonry to be " a jewel of the utmost value." 
 
 The letter follows. See Freemasonry Pamphlets, Vol. Ill, 
 p. 18. 
 
 RICHMOND, October 18, 1833. 
 SIR, 
 
 Your letter of the nth, transmitting a resolution of the 
 Antimasonic Convention of the State of Massachusetts, passed 
 the 1 3th of last September, has just reached me. The flat 
 tering terms in which that resolution is expressed claim and 
 receive my grateful acknowledgments. 
 
 The circumstances represented as attending the case of 
 Morgan were heard with universal detestation, but produced 
 no other excitement in this part of the United States, than 
 is created by crimes of uncommon atrocity. Their opera 
 tion on masonry, whatever it might be, was silent, rather ar 
 resting its progress and directing attention from the society, 
 
102 THE POLITICAL AND ECONOMIC 
 
 than inducing any open, direct attack upon it. The agita 
 tions which convulse the North, did not pass the Potomac. 
 Consequently, an individual so much withdrawn from the 
 world as myself, entering so little into the party conflicts of 
 the day, could feel no motive, certainly I felt no inclination, 
 to volunteer in a distant conflict, in which the wounds that 
 might be received, would not be soothed by the consoling re 
 flection that he suffered in the performance of a necessary 
 duty. I never did utter the words ascribed to me, nor any 
 other words importing the sentiment they convey. I never 
 did say " Freemasonry is a jewel of the utmost value, that 
 the pure in heart and life can only appreciate it fully, and 
 that in a free government it must, it will be sustained and 
 protected." The fact mentioned in the resolution, that I have 
 been in a Lodge but once, so far as I can recollect, for nearly 
 forty years, is evidence that I have no disposition to volun 
 teer in this controversy, as the zealous partisan, which this 
 language would indicate. In fact I have sought to abstain 
 from it. Although I attach no importance to their opinions 
 I may entertain respecting masonry, yet I ought not to re 
 fuse on application, to disavow any expressions which may be 
 ascribed to me, that I never used. I have said that I always 
 understood the oaths taken by a mason, as being subordinate 
 to his obligations as a citizen to the laws, but have never af 
 firmed that there was any positive good or ill in the institu 
 tion itself. 
 
 The resolution also inquires " whether, as a friend and 
 biographer of Washington, I have in my possession or recol 
 lection, any knowledge of any acts of General Washington, or 
 any documents written by him to masonic bodies, approving 
 of masonry." 
 
 The papers of General Washington were returned many 
 years past to my lamented friend, his nephew, and are 
 now, I believe, in the possession of Mr. Sparks. I do not 
 recollect ever to have heard him utter a syllable on the sub 
 ject. Such a document, however, not being of a character 
 to make any impression at the time, may have passed my mem 
 ory. With great respect, 
 
 I am, Sir, 
 
 Your ob t servant, 
 To JOHN BAILEY, ESQ. J. MARSHALL. 
 
DOCTRINES OF JOHN MARSHALL 103 
 
 TO HON. JUDGE STORY 
 
 RICHMOND, November 26th, 1826. 
 MY DEAR SIR : 
 
 I have deferred thanking you for the copy of your Dis 
 course before the Society of Phi Beta Kappa, until there was 
 some probability that my letter might find you at Salem. 
 
 But it is time to return to your discourse. I have read it 
 with real pleasure, and am particularly gratified with your 
 eulogy on the ladies. It is a matter of great satisfaction to 
 me to find another Judge, who though not as old as myself, 
 thinks justly of the fair sex, and commits his sentiments to 
 print. I was a little mortified, however, to find that you had 
 not admitted the name of Miss Austen into your list of fav 
 orites. I had just finished reading her novels when I re 
 ceived your discourse, and was so much pleased with them that 
 I looked in it for her name, and was rather disappointed at 
 not finding it. Her flights are not lofty, she does not soar 
 on eagle s wings, but she is pleasing, interesting, equable, and 
 yet amusing. I count on your making some apology for this 
 omission. . . . 
 
 Farewell. 
 
 With esteem and affection, 
 
 I am yours, 
 
 J. MARSHALL. 57 
 
 TO HON. JOSEPH STORY 
 
 RICHMOND, July 3ist, 1833. 
 MY DEAR SIR : 
 
 I have finished reading your great work, and wish it could 
 be read by every statesman, and every would-be statesman in 
 the United States. It is a comprehensive and an accurate 
 commentary in our Constitution, formed in the spirit of the 
 original text. In the South, we are so far gone in political 
 metaphysics that I fear no demonstration can restore us to 
 common sense. The word " State Rights," as expounded by 
 the resolutions of 98 and the report of 99, construed by our 
 legislature, has a charm against which all reasoning is vain. 
 Those resolutions and that report constitute the creed of every 
 
 57 The above letter is printed in the " Life and Letters of Judge Story," 
 Vol. I, pp. 505-506. 
 
104 THE POLITICAL AND ECONOMIC 
 
 politician, who hopes to rise in Virginia ; and to question them, 
 or even to adopt the construction given by their author, is 
 deemed political sacrilege. The solemn and interesting ad 
 monitions of your concluding remarks will not, I fear, avail 
 as they ought to avail against this popular frenzy. 
 
 I am grateful for the very flattering terms in which you 
 speak of your friend in many parts of this valuable work, as 
 well as in the dedication. In despite of my vanity, I cannot 
 suppress the fear, that you will be supposed by others, as 
 well as myself, to have consulted a partial friendship farther 
 than your deliberate judgment will approve. Others may 
 not contemplate this partiality with as much gratification as 
 its object. 
 
 Your affectionate friend, 
 
 J. MARSHALL. 57 * 1 
 
 TO HON. JOSEPH STORY 
 
 RICHMOND, July 3ist, 1833. 
 MY DEAR SIR : 
 
 I have received the third number of the " National Por 
 trait Gallery," and know not in what terms to express my 
 obligations to you for the more than justice you have done the 
 character of your brother Judge. In this instance, too, all 
 must perceive the partiality of a friend. Be assured that he, 
 on whom that partiality is bestowed, will carry with him to 
 the grave a deep sense of it. I am particularly gratified by 
 the terms in which you speak of my father. If any con 
 temporary, who knew him in the prime of manhood, sur 
 vived, he would confirm all you say of him. 
 
 I have received the paper containing your opinion in the 
 very important case of Allen V. McKean. It is impossible 
 a subject could have been brought before you on which you 
 are more completely au fait. It would seem as if the State 
 legislatures (many of them, at least) have an invincible hos 
 tility to the sacredness of charters. From the paper, I should 
 conjecture that this case will proceed no further. 
 Your affectionate friend, 
 
 J. MARSHALL. 58 
 
 "a Story s " Life and Letters," Vol. II, pp. 135-136. 
 158 The above letter is printed in Story s " Life and Letters," Vol. II, p. 
 150. 
 
DOCTRINES OF JOHN MARSHALL (105 
 
 TO HON. JOSEPH STORY 
 
 RICHMOND, October 6th, 1834. 
 MY DEAR SIR : 
 
 On my return a day or two past from an annual visit to 
 our mountains, I had the real gratification of receiving a num 
 ber of the New England Magazine for August last, contain 
 ing an essay, entitled " Statesmen : their rareness and impor 
 tance," forwarded to me by yourself, and thank you truly for 
 the real pleasure afforded by its perusal. 
 
 The justness and solidity of its sentiments, the distinguished 
 individual who is selected as an example of the real states 
 man, and the kind notice taken of an old friend who is under 
 so many obligations to you, designate the author as cer 
 tainly as if his name had been affixed to the work. 
 
 It is in vain to lament, that the portrait which the author 
 has drawn of our political and party men, is, in the general, 
 true. Lament it as we may, much as it may wound our vanity 
 or our pride, it is still, in the main, true; and will I fear, so 
 remain. 
 
 In the South, political prejudice is too strong to yield to 
 any degree of merit; and the great body of the nation con 
 tains, at leasl appears to me to contain, too much of the same 
 ingredient. QTo men who think as you and I do, the present 
 is gloomy enough ; and the future presents no cheering pros 
 pect. The struggle now maintained in every State in the 
 Union seems to me to be of doubtful issue; but should it ter 
 minate contrary to the wishes of those who support the enor 
 mous pretensions of the Executive, should victory crown the 
 exertions of the champions of constitutional law, what se 
 rious and lasting advantage is to be expected from his re 
 sult? In the South (things may be less gloomy with you) 
 those who support the Executive do not support the Govern 
 ment. They sustain the personal power of the President, but 
 labor incessantly to impair the legitimate powers of the Gov 
 ernment. Those who oppose the violent and rash measures 
 of the Executive (many of them nullifiers, many of them se- 
 ceders,) are generally the bitter enemies of a constitutional 
 government. Many of them are the avowed advocates of a 
 league; and those who do not go the whole length, go great 
 part of the way. What can we hope for in such circum 
 stances? As far as I can judge, the Government is weakened, 
 
io6 THE POLITICAL AND ECONOMIC 
 
 /whatever party may prevail. Such is the impression I receive 
 (from the language of those around me. 
 
 ^ Before leaving Richmond I had finished your treatise on 
 The Conflict of Laws," and am much pleased with it. I 
 was a good deal surprised at the diversity of opinion among 
 writers on the general law of Continental Europe. I was sur 
 prised to find that there were still more doubtful questions 
 growing out of the civil than out of the common law. I 
 wonder, too, how you ever have performed so laborious a 
 task. You certainly love work for its own sake. 
 
 With us the natural atmosphere has been as stormy, as 
 V tempestuous, and in allrespects as extraordinary as the politi- 
 Vcal. Yet, I remain in good health, and as usual, 
 
 Your faithful friend, 
 
 J. MARSHALL. 58 * 1 
 
 The following twenty-six letters, dealing mainly with the 
 political and legal questions of that period, were written by 
 Marshall to Story between the dates 1819 and 1834. They 
 were first published by the Massachusetts Historical Society. 
 
 THE HON BLE JOSEPH STORY, 
 
 Salem, Massachusetts. 
 
 RICHMOND, March 24th, 1819. 
 DEAR SIR : 
 
 Since my return to Washington I mentioned to a very near 
 friend who owns an extensive nail factory that I had under 
 stood that some machinery was in use in & about Boston 
 which greatly facilitated the making of nails. He was anx 
 ious to have some account of the machine which I was totally 
 unable to give. 
 
 I have some idea that the subject was mentioned by you, 
 at any rate it was mentioned in your presence. I under 
 stood that there were two machines, one very expensive, the 
 other almost equally valuable & costing only about one hun 
 dred dollars. If you have leisure will you have the good 
 ness to mention in a letter to me what these machines are 
 called, what is their operation, & what they cost? You can 
 probably say something about their advantages. 
 
 ssa Story s "Life and Letters," Vol. II, p. 172. 
 
DOCTRINES OF JOHN MARSHALL 107 
 
 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 publick it will remain undefended 
 & of course be considered as damnably heretical. 
 
 Yours truly, 
 
 J. MARSHALL. 
 
 The Bank case mentioned is the case of McCulloch v. the 
 State of Maryland (4 Wheaton Reports), denying the right 
 of a state to tax the Bank of the United States. 
 
 At the foot of this letter is the following memorandum in 
 the handwriting of Daniel Webster: 
 
 " Mr. Baldwin & Mr. May referred me to Mr. Geo. Odiorne. 
 I have seen him; he says he will send one, all fitted for use, 
 for 200 Dlls., altho that is below his usual price, & he 
 would not engage to sell another at that rate. The machine 
 can be shipped here for Richmond, on request. I believe this 
 to be the least expensive, & is the machine which is in suc 
 cessful operation in various places. D. W." 
 
 THE HON BLE JOSEPH STORY, 
 
 Salem, 
 
 Massachusetts. 
 
 RICHMOND, May 27th, 1819. 
 MY DEAR SIR : 
 
 I had the pleasure of receiving a few days past your favour 
 of the 1 5th, & thank you very sincerely for the informa 
 tion you have given respecting the nail machines in use in 
 your country. The information will be valuable to my 
 friend. 
 
 I am much obliged by the alterations you have made in 
 the opinion in the Dartmouth College case, & am highly grati 
 fied by what you say respecting it. The opinion in the Bank 
 case continues to be denounced by the democracy in Virginia. 
 An effort is certainly making to induce the legislature which 
 will meet in December to take up the subject & to pass resolu 
 tions not very unlike those which were called forth by the alien 
 and sedition laws in 1799. Whether the effort will be suc 
 cessful or not may perhaps depend in some measure on the 
 
io8 THE POLITICAL AND ECONOMIC 
 
 sentiments of our sister states. To excite this ferment the 
 opinion has been grossly misrepresented; and where its argu 
 ment has been truly stated it has been met by principles one 
 would think too palpably absurd for intelligent men. But 
 prejudice will swallow anything. If the principles which have 
 been advanced on this occasion were to prevail the constitu 
 tion would be converted into the old confederation. The 
 piece to which you allude was not published in Virginia. Our 
 patriotic papers admit no such political heresies. It con 
 tained, I think, a complete demonstration of the fallacies & 
 errors contained in those attacks on the opinion of the Court 
 which have most credit here & are supposed to proceed from 
 a high source, but was so mangled in the publication that 
 those only who had bestowed close attention to the subject 
 could understand it. There were two numbers & the editor 
 of the Union in Philadelphia, the paper in which it was pub 
 lished, had mixed the different numbers together so as in 
 several instances to place the reasoning intended to demon 
 strate one proposition under another. The points & argu 
 ments were so separated from each other, & so strangely 
 mixed as to constitute a labyrinth to which those only 
 who understood the whole subject perfectly could find a clue. 
 
 I wish to consult you on a case which to me who am not 
 versed in admiralty proceedings has some difficulty. The Lit 
 tle Charles was libelled for a violation of the first embargo 
 act in 1808. She was acquitted in the District, but con 
 demned in the Circuit Court. After a thousand delays a ques 
 tion is now before the Circuit Court as a Court of Admi 
 ralty for judgement on the bond given on the property being 
 restored. Several objections are made, two of which de 
 serve consideration. 
 
 The first is that the order for restoration was made, 
 not in court, but by the Judge out of court, not at a 
 called court (and) second that the bond was taken by the 
 marshal to himself & not to the U. S. Upon this order 
 the vessel was delivered, & this bond has been returned to 
 court, but has not been acted on. Nor is there any act of 
 the Court approving the proceeding. It is contended to be 
 a mere act in pais not sanctioned by the court. That it is the 
 unauthorized act of the marshal who might release the bond 
 
DOCTRINES OF JOHN MARSHALL 109 
 
 or sue upon it, and that the court cannot consider it as in the 
 place of the vessel and so act upon it. 
 
 With great regard and esteem, I am, dear Sir, 
 
 your obedt 
 
 J. MARSHALL. 
 
 THE HON BLE JOSEPH STORY, 
 Salem, 
 
 Massachusetts. 
 
 RICHMOND, July i3th, 1819. 
 MY DEAR SIR: 
 
 I had the pleasure, this morning of receiving your letter of 
 the 7th, by which I am greatly obliged. I shall at the next 
 term decide the case of the Little Charles in conformity with 
 your reasoning. It is, I think, perfectly sound ; & were this 
 even questionable the practice of the courts ought to be uni 
 form. 
 
 Another admiralty question of great consequence has oc 
 curred at the last term which I would bring before the Su 
 preme Court, if I could, but as I have not the privilege of di 
 viding the Court when alone, & as the sum is only about 
 1500$, it must abide by my decision. It is, however, one of 
 general importance, & I must ask the favor of you to give me 
 your views of it. 
 
 A vessel belonging to the port of Richmond in Virginia 
 was hypothecated for necessary repairs in New York & has 
 been libelled in the District Court of this State. The District 
 Judge condemned her, & the case is before me on an appeal. 
 It has been agreed that New York is as much foreign to Vir 
 ginia as Ireland or Guernsey to England. It has also been 
 agreed that the power of hypothecation on simple interest is 
 not so strictly guarded as the power of pledging the ship on 
 bottomry for usurious interest. 
 
 From a consideration of this case I have been led to doubt 
 what rule ought to be adopted in the United States, & to 
 question the propriety of applying the rule in England to our 
 situation. The foundation of the rule is that in a foreign port 
 this exercise of ownership on the part of the master may be 
 necessary whereas in a domestic port it cannot be presumed 
 to be so. Now let the ports of one state be considered as 
 
no THE POLITICAL AND ECONOMIC 
 
 foreign or domestic with respect to the vessels of another & 
 cases may arise in which the literal application of the rule 
 would violate its principle. It would be absurd that a vessel 
 belonging to Amboy should be hypothecated in New York. 
 But the same vessel at New Orleans or in the mouth of Col 
 umbia would be completely out of the reach of the owner. 
 The necessity for exercising this power by the master would 
 be much stronger than in the case of a vessel belonging to one 
 side of the bay of Passimiquoddy hypothecated in a port on 
 the other. 
 
 I do not think a republication of the piece you mention in 
 the Boston papers to be desired, as the antifederalism of Vir 
 ginia will not, I trust, find its way to New England. I should 
 also be sorry to see it in Mr. Wheaton s appendix because that 
 circumstance might lead to suspicions respecting the author 
 & because I should regret to see it republished in its present 
 deranged form with the two centres transposed. 
 
 I am highly gratified by the sentiments you express, & shall 
 always feel a grateful recollection of them. The esteem of 
 those we esteem is among the most delightful sensations of 
 the human heart. 
 
 I had never thought of preparing an opinion in the militia 
 case. That is committed to you, & cannot be in better hands. 
 I shall just sketch my ideas for the purpose of examining them 
 more closely, but shall not prepare a regular opinion. As at 
 present disposed I do not think we shall differ. 
 With very much esteem and regard, 
 
 I am, dear Sir, your obed 
 
 J. MARSHALL. 
 
 The Lottery case mentioned in the following letter is that 
 of Cohens v. Virginia (6 Wheaton s Reports), in which the 
 Court maintained its jurisdiction, even in a criminal case, to 
 review the judgments of the State Courts on Federal ques 
 tions. 
 
 Spencer Roane, a judge of the Virginia Court of Errors 
 and a warm friend of Jefferson, attacked the Supreme Court 
 in the Richmond Enquirer, under the pseudonym of Algernon 
 Sydney, a name that has often been adopted by writers of 
 the press. 
 
DOCTRINES OF JOHN MARSHALL in 
 
 MR. JUSTICE STORY, 
 Salem, 
 
 Massachusetts. 
 
 RICHMOND, June I5th, 1821. 
 DEAR SIR: 
 
 A question has occurred in the course of this term which I 
 have taken under advisement for the purpose of enquiring 
 whether it has been decided by my brethren. It is this: A 
 & B trading under the firm of A, B & Co. were indebted to 
 the U. S. on bonds for duties. They made an assignment of 
 all their social effects to secure certain creditors of the firm. 
 A had private property to a considerable amount, which he 
 afterwards conveyed to secure his individual creditors. The 
 question is, whether the first conveyance was an act of in 
 solvency within the act of Congress so that the priority of the 
 U. S. attached on the social effects, or whether the act of 
 insolvency was not committed until the execution of the sec 
 ond deed. The question arises on a contest between the 
 creditors secured by the two deeds, each contending that the 
 claim of the U. S. should be satisfied by the other. Had the 
 second deed never been executed, would the first have 
 amounted to an act of insolvency on the part of the firm? If 
 the case has ever occurred in your circuit, I shall be glad to 
 know how it has been decided. If it has never occurred, you 
 will oblige me by stating your opinion on it if you have one. 
 
 The opinion of the Supreme Court in the Lottery case has 
 been assaulted with a degree of virulence transcending what 
 has appeared on any former occasion. Algernon Sidney is 
 written by the gentleman who is so much distinguished for 
 his feelings towards the Supreme Court, & if you have not 
 an opportunity of seeing the Elnquirer I will send it to you. 
 There are other minor gentry who seek to curry favor & get 
 into office by adding their mite of abuse, but I think for coarse 
 ness & malignity of invention Algernon Sidney surpasses 
 all party writers who have ever made pretensions to any de 
 cency of character. There is on this subject no such thing 
 as a free press in Virginia, and of consequence the calumnies 
 and misrepresentations of this gentleman will remain uncon- 
 tradicted & will by many be believed to be true. He will be 
 supposed to be the champion of state rights, instead of being 
 
ii2 THE POLITICAL AND ECONOMIC 
 
 what he really is, the champion of dismemberment. With 
 great regard and esteem, 
 
 I am, dear Sir, yours, &c., 
 
 J. MARSHALL. 
 
 I am anxious to know whether that amendment of the 
 constitution on which Mr. Webster & yourself were so dis 
 tinguished has been approved or rejected by your sapient 
 people. 
 
 The last part of the above letter is in reference to the part 
 taken by Mr. Webster and Judge Story in the debates on the 
 apportionment of the Senate and the House of Representa 
 tives. The people rejected the amendment when it was sub 
 mitted to them. 
 
 The letter commented on by Judge Marshall in the following 
 letter is very likely the one to William C. Jarvis, printed in 
 Washington s edition of the " Writings of Thomas Jefferson," 
 Vol. VII, pp. 177-179, in which Jefferson denies the right 
 of the judges to issue a mandamus to any " executive or legis 
 lative officer to enforce the fulfillment of their official duties," 
 and asserts that it is a " very dangerous doctrine " " to con 
 sider the judges as the ultimate arbiters of all constitutional 
 questions." 
 
 At the end of the next to the last paragraph there is this 
 sentence, " The case of the mandamus may be the cloak, but 
 the batture is recollected with still more resentment." The 
 first part of this sentence refers to the opinion of the Chief 
 Justice in the case of Marbury v. Madison, i Cranch, 153. 
 The second part refers to the protracted litigation which in 
 volved the title to what was known as the batture, near New 
 Orleans, in which Mr. Jefferson took a strong personal in 
 terest. The copy of the debates he asks for are the De 
 bates in the Massachusetts Convention, which were published 
 in 1821, from the reports of the "Boston Daily Advertiser," 
 and which were reprinted in 1853. 
 
 THE HON BLE MR. JUSTICE STORY, 
 Salem, 
 
 Massachusetts. RICHMOND, July I3th, 1821. 
 
 MY DEAR SIR: 
 
 I had yesterday tte pleasure of receiving your letter of the 
 
DOCTRINES OF JOHN MARSHALL 
 
 27th of June, by which I am greatly obliged. I shall decide 
 the case concerning which I enquired in conformity with your 
 opinion. The law of the case I have thought very doubt 
 ful ; the equity of it is, I think, pretty clear. 
 
 Your kind expression respecting myself gratify me very 
 much. Entertaining the truest affection & esteem for my 
 brethren generally, & for yourself particularly, it is extremely 
 grateful to believe that it is reciprocated. The harmony of 
 the bench will, I hope & pray, never be disturbed. We have 
 external and political enemies enough to preserve internal 
 peace. 
 
 What you say of Mr. Jefferson s letter rather grieves than 
 surprises me. It grieves me because his influence is still so 
 great that many, very many, will adopt his opinions, however 
 unsound they may be, & however contradictory to their own 
 reason. I cannot describe the surprize & mortification I have 
 felt at hearing that Mr. Madison has embraced them with re 
 spect to the judicial department. 
 
 For Mr. Jefferson s opinion as respects this department it 
 is not difficult to assign the cause. He is among the most 
 ambitious, & I suspect among the most forgiving of men. His 
 great power is over the mass of the people, & this power is 
 chiefly acquired by professions of democracy. Every check 
 on the wild impulse of the moment is a check on his own 
 power, & he is unfriendly to the source from which it flows. 
 He looks of course with ill-will at an independent judiciary. 
 
 That in a free country with a written constitution any in 
 telligent man should wish a dependent judiciary, or should 
 think that the constitution is not a law for the court as well 
 as the legislature would astonish me, if I had not learnt from 
 observation that with manj^ men the ju^emeat,.isL.CQnipletely 
 controlled by the passions. The case of the mandamus may 
 "be the cToaTcHbut the batture is recollected with still more re 
 sentment. 
 
 I send you the papers containing the essays of Algernon 
 Sydney. Their coarseness & malignity would designate the 
 author if he was not avowed. The argument, if it may be 
 called one, is, I think, as weak as its language is violent and 
 prolix. Two other gentlemen have appeared in the papers on 
 this subject; one of them is deeply concerned in pillaging the 
 purchasers of the Fairfax estate, in which goodly work he 
 
n 4 THE POLITICAL AND ECONOMIC 
 
 fears no other obstruction than what arises from the appelate 
 power of the Supreme Court, & the other is a hunter after 
 office who hopes by his violent hostility to the Union, which 
 in Virginia assumes the name of regard for state rights, & 
 by his devotion to Algernon Sydney, to obtain one. In sup 
 port of the sound principles of the constitution & of the Union 
 of the States, not a pen is drawn. In Virginia the tendency 
 of things verges rapidly to the destruction of the government 
 & the re-establishment of a league of sovereign states. I look 
 elsewhere for safety. 
 
 With very much esteem & affection, 
 
 I am, dear Sir, your 
 
 J. MARSHALL. 
 I will thank you for the copy of the debates. 
 
 The Mr. Hall mentioned in the following letter was Mr. 
 John E. Hall, editor of a law journal published in the city of 
 Philadelphia. From 1808 to 1817 he published " The Ameri 
 can Law Journal." In 1821 he published one volume of 
 " The Journal of Jurisprudence," which was intended to be a 
 continuation of the former periodical, but no more volumes 
 were published. The article referred to in this letter, against 
 the Supreme Court, is not printed in this journal. The ad 
 dress which Mr. Story made to the Suffolk Bar was not 
 printed until 1829, when it was printed in the " American 
 Jurist." 
 
 You will notice the reference Judge Marshall makes in 
 this letter to his greatest enemy, Thomas Jefferson. Judge 
 Marshall was almost certain that Mr. Jefferson was back of 
 the whole movement. What they really meant to do was to 
 oust Judge Marshall; all the evidence available at present 
 seems to substantiate this. 
 
 THE HON BLE MR. JUSTICE STORY, 
 Salem, 
 
 Massachusetts. 
 
 RICHMOND, Septr i8th, 1821. 
 MY DEAR SIR: 
 
 I had yesterday the pleasure of receiving your favor of the 
 9th. I thank you for your quintal of fish, & shall try my pos 
 sibles to observe your instructions in the cooking department. 
 
DOCTRINES OF JOHN MARSHALL 115 
 
 I hope to succeed, but be this as it may I promise to feed on 
 the fish with an appetite which would not disgrace a genuine 
 descendent of one of the Pilgrims. 
 
 I am a little surprized at the request which you say has been 
 made to Mr. Hall, although there is no reason for my being 
 so. The settled hostility of the gentleman who has made that 
 request to the judicial department will show itself in that 
 & in every other form which he believes will conduce to its 
 object. For this he has several motives, & it is not among 
 the weakest that the department would never lend itself as a 
 tool to work for his political power. The Batture will never 
 be forgotten. Indeed there is some reason to believe that the 
 essays written against the Supreme Court were, in a degree 
 at least, stimulated by this gentleman, and that although the 
 coarseness of the language belongs exclusively to the author, 
 its acerbity has been increased by his communications with the 
 great Lama of the mountains. He may therefore feel him 
 self in some measure required to obtain its republication in 
 some place of distinction. But what does Mr. Hall purpose 
 to do? I do not suppose you would willingly interfere so as 
 to prevent his making the publication, although I really think 
 it is in form & substance totally unfit to be placed in his law 
 journal. I really think a proper reply to the request would be 
 to say that no objection existed to the publications of any 
 law argument against the opinion of the Supreme Court, but 
 that the coarseness of its language, its personal & official 
 abuse, & its tedious prolixity constituted objections to the in 
 sertion of Algernon Sydney which were insuperable. If, 
 however, Mr. Hall determines to comply with this request, I 
 think he ought, unless he means to make himself a party mili 
 tant, to say that he published that piece by particular request, 
 & ought to subjoin the masterly answer of Mr. Wheaton. I 
 shall wish to know what course Mr. Hall will pursue. 
 
 I have not yet received the debates in your convention. Mr. 
 Caldwell I presume has not met with an opportunity to send 
 the volume. I shall read it with much pleasure. 
 
 I have seen a sketch of your address to the Suffolk bar, & 
 shall be very glad to have it at large. I have no doubt of be 
 ing much gratified by the manner in which the subjects you 
 mention are treated. 
 
 A deep sign to convert our government into a mere league 
 
ii6 THE POLITICAL AND ECONOMIC 
 
 of states has taken a strong hold of a powerful & violent 
 party in Virginia. The attack upon the judiciary is in fact an 
 attack upon the union. The judicial department is well un 
 derstood to be that through which the government may be at 
 tacked most successfully, because it is without patronage, & 
 of course without power. And it is equally well understood 
 that every subtraction from its jurisdiction is a vital wound 
 to the government itself. The attack upon it, therefore, is a 
 masked battery aimed at the government itself. The whole 
 attack, if not originating with Mr. Jefferson, is obviously ap 
 proved & guided by him. i It is, therefore, formidable in 
 other states as well as in this, & it behooves the friends of the 
 union to be more on the alert than they have been. An effort 
 will certainly be made to repeal the 25th sec. of the judi 
 cial. 
 
 I have a case before me which cannot be carried up to the 
 Supreme Court & which presents difficulties which appear to 
 me to be considerable. It is an action of debt brought by the 
 U. S. for a forfeiture incurred by rescuing some distilled 
 spirits which had not been proceeded on by the distiller ac 
 cording to law. 
 
 The declaration charges in the alternative that the defend 
 ants, or one of them, rescued or caused to be rescued, &c. 
 
 It is clear enough that this would be ill in an indictment or 
 information, but I am inclined to think it is cured by our 
 statute of jeofails. The defendants insist that this statute 
 does not apply to suits brought by the U. S., but I think it 
 does. 
 
 Another difficulty has puzzled me so much that I have 
 taken the case under advisement with the intention of con 
 sulting some of my more experienced brethren. 
 
 The difficulty is this. At the trial the rescue was proved 
 only by two depositions. Each contains the following ex 
 pressions, " On Novr I7th, 1815, agreeable to written & ver 
 bal instructions from Mr. William McKinley, collector," &c. 
 
 The defendants demurred to the testimony & the District 
 Court gave judgement for the plaintiffs. 
 
 It is contended, ist, That there is no sufficient evidence that 
 McKinley is collecter. His commission ought to be pro 
 duced & its absence cannot be supplied, but there is not even a 
 direct averment that he is collector. 2d, The written instruc- 
 
DOCTRINES OF JOHN MARSHALL 117 
 
 tions of the collector ought to be produced to show that the 
 seizure was made under his authority. 
 
 You are accustomed to these cases. Will you aid me with 
 your advice? 
 
 Yours truely & sincerely, 
 
 J. MARSHALL. 
 
 THE HON BLE MR. JUSTICE STORY, 
 Salem, 
 
 Massachusetts. 
 
 RICHMOND, July 2d, 1823. 
 MY DEAR SIR: 
 
 I had the pleasure a few days past of receiving your letter 
 of the 22d of June & am greatly obliged by your friendly at 
 tention to my son. I am sorry that "he misunderstood me so 
 far as to request an advance of money from you when you 
 could not have funds of mine in your hands. I gave him 
 what I hoped would be sufficient for all his purposes until he 
 should enter college, but told him, should I be mistaken re 
 specting the amount of his expenditures, to apply to you. I 
 did not suspect that his application would be made till the 
 month of August. 
 
 The case concerning the securities of the cashier of the 
 Bank goes to the Supreme Court & will probably be reversed. 
 I suppose so, because I conjecture that the practice of banks 
 has not conformed to my construction of the law. The Judge, 
 however, who draws the opinion must have more ingenuity 
 than I have, if he draws a good one. 
 
 The main question respects the validity of the bond on 
 which the suit was instituted. It was signed at different times 
 and left in possession of the cashier, certainly, I suppose, in 
 the expectation that he would forward it to the proper place. 
 The plea of non est factum was put in among other pleas & 
 the plaintiff proved the signature of the obligors & relied on 
 the possession of the bond & the suit on it as evidence to be 
 left to the jury of its delivery & acceptance. 
 
 The cause was argued with very great ability, and it was 
 contended that this would not be sufficient in any case, but if 
 in general, not in this case. 
 
 I held very clearly that in the case of an individual obligee 
 
n8 THE POLITICAL AND ECONOMIC 
 
 the evidence would authorize the jury to infer delivery, but 
 not in the case of the Bank of the United States. 
 
 The incorporating act requires that before the cashier shall 
 be permitted to enter on the duties of his office he shall give 
 bond with security to be approved by the board of Directors 
 for the faithful performance of its duties. I had no doubt 
 that the suit upon the bond was evidence of its acceptance & 
 consequently of its being approved, if that fact could be es 
 tablished by parol evidence, but I was of opinion that it could 
 not be so established. The board of Directors, I thought, 
 could only speak by their record. They cannot speak or act 
 as individuals speak or act. They speak & act by their min 
 utes. Their approbation & acceptance of the bond could not 
 be expressed otherwise than officially on their minutes, & no 
 other evidence than the minutes could establish the fact. I 
 therefore did not permit the bond to go to the jury. 
 
 The question was entirely new, & I was at first rather in 
 favor of the plaintiffs. But in so lax a manner was this busi 
 ness conducted as to show very clearly that the cashier was 
 in the full performance of his duty before the bond was exe 
 cuted, & to leave it very doubtful whether the breaches as 
 signed were not committed before the bond passed out of the 
 possession of the cashier. There was reason to believe that 
 it had never been seen by the Board of Directors till he was 
 removed from office, if then. It was impossible not to fore 
 see that if the bond went to the jury questions would im 
 mediately arise on the time of its commencing obligation. 
 The date could not be the guide, because it was not executed 
 at its date. If the time when it was signed by the last obligor 
 should be insisted on, it was obvious that it had not then been 
 seen or approved by the Directors, nor was it accepted by 
 them. The delivery, therefore, could not be complete. If 
 the time when it came to the possession of the Directors were 
 to be taken, it probably never came to their possession. These 
 difficulties produced a close examination of the point, the re 
 sult of which was a perfect conviction that the minutes of the 
 Board could alone prove the acceptance of the bond. I did 
 not doubt that the board of Philadelphia might have author 
 ized the board of Richmond to accept the bond, but such au 
 thority ought to appear by the minutes of the board at Phil 
 adelphia. 
 
DOCTRINES OF JOHN MARSHALL 119 
 
 I shall bow with respect to the judgement of reversal, but 
 till it is given I shall retain the opinion I have expressed. 
 With great & affectionate esteem, I am your 
 
 J. MARSHALL. 
 
 You alarm me respecting the successor of our much la 
 mented friend. I too had heard a rumour which I hoped was 
 impossible. Our Presidents, I fear, will never again seek to 
 make our department respectable. 
 
 The case mentioned at the end of the above letter is that 
 of the Bank of the United States v. Dandridge (12 Wheaton s 
 Reports). As he anticipated in the letter, the opinion of 
 Judge Marshall was reversed. He gave this opinion when 
 he was sitting as Circuit Judge. The opinion of the majority 
 of the Court was given by Judge Story, while Chief Justice 
 Marshall gave a much longer dissenting opinion. 
 
 The much lamented friend mentioned was Brockholst Liv 
 ingstone, one of the Associate Justices of the Supreme Court. 
 He died March n, 1823, and was succeeded by Smith Thomp 
 son. 
 
 The correspondence mentioned in the following letter, the 
 publication of which was so extremely regretted, was the 
 " Correspondence between the Hon. John Adams, late Presi 
 dent of the United States, and the late Wm. Cunningham, 
 Esq., beginning in 1803 and ending in 1812," published in 
 1823 by E. M. Cunningham, Esq. 
 
 THE HON BLE MR. JUSTICE STORY, 
 Salem, Massachusetts. 
 
 RICHMOND, Deer Qth, 1823. 
 MY DEAR SIR: 
 
 I had the pleasure yesterday of receiving your letter of the 
 24th ultimo & congratulate you on passing through your cir 
 cuit in such good health & spirits. Our brother Washington 
 was so unwell as to be under the necessity of adjourning the 
 court at Philadelphia without going through the docket. I 
 am still engaged at this place in a sort of dilatory way, doing 
 very little, and still having something to do. A case was ar 
 gued yesterday which I would send to the Supreme Court if 
 I could, but I cannot. The Pilot, an American vessel, was 
 
120 THE POLITICAL AND ECONOMIC 
 
 captured by pirates & converted into a piratical cruiser. She 
 was then recaptured by one of our squadron under Commo 
 dore Porter after a sharp action. She was brought into Nor 
 folk, libelled as prize, & claimed by the original owner. The 
 attorney for the captors abandoned the claim as prize, and 
 asked salvage. This claim was resisted on the ground that 
 the capture was not within the act of 1800, because that ap 
 plies only to recaptures from an enemy of the United States, 
 not to recaptures from a pirate. It was insisted too that the 
 act of 1819 does not give salvage for a recapture made by a 
 national ship, because although an American vessel recap 
 tured by a merchantman or private vessel is to be brought in, 
 yet such vessel recaptured by a national ship is not to be 
 brought in. As there is no salvage given by statute, the claim, 
 it was said, must rest upon general law. It was admitted that 
 according to that law salvage is due for a vessel recaptured by 
 a private ship, but not for a vessel recaptured by a national 
 ship, because the nation owes protection to all its people, and 
 it is a part of the duty of the national force to afford this 
 protection. In the present case it was one of the objects of 
 the expedition. It was said that the general dicta that sal 
 vage is due for recaptures made from pirates must be limited 
 to such as are made by private ships or by the public ships 
 of some other nation than that of the recaptured vessel. 
 
 The counsel for the recaptors relied chiefly on the general 
 principle that by the law of nations, or by the general mari 
 time law, salvage is due for all vessels recaptured from pi 
 rates. 
 
 The District Judge gave salvage, & the owners have ap 
 pealed. I do not know that the question has ever arisen in 
 any of the courts of the United States. Perhaps your in 
 formation may be more extensive, and I will thank you to 
 give it to me. If the case has not been decided you will 
 greatly oblige me by your sentiments on it, as I know that you 
 are more au fait on these questions than I am. The sooner I 
 hear from you, provided you are satisfied in the case, the 
 better. 
 
 I have read the correspondence to which you refer and re 
 gret its publication extremely. I feel great respect for Mr. 
 Adams, and shall always feel it whatever he may do. The 
 extreme bitterness with which he speaks of honourable men 
 
DOCTRINES OF JOHN MARSHALL 121 
 
 who were once his friends is calculated to mortify and pain 
 those who remain attached to him. A comparison of the 
 language he applies to gentlemen of high character in Mass 
 achusetts with that which in the early part of the corres 
 pondence he applied to those who were always his enemies 
 and gross calumniators, who cannot even now treat him with 
 decency, inspires serious reflections. We can only say, non 
 est qualis erat. 
 
 I think I can guess, although not born north of the Hudson, 
 what you hint at respecting the Presidential election; but I 
 shall be as careful not to commit my guess as you are re 
 specting your scheme. 
 
 Farewell. Providence, I hope, will continue to take care of 
 us. With affectionate esteem, 
 
 I am, dear Sir, your obedt 
 
 J. MARSHALL. 
 
 The portrait mentioned at the beginning of the following 
 letter is now hanging in Memorial Hall in the dining-room 
 of Harvard College, at Cambridge, Mass. This portrait was 
 given by Judge Story s will to the President and Fellows of 
 Harvard College. 
 
 Appleton s " Cyclopaedia of American Biography " states 
 (Vol. II, p. 757) that Horatio Greenough made a marble 
 bust of Judge Marshall ; and in a letter to his brother Henry, 
 dated February 28, 1828, he writes : " I had this morning the 
 first sitting from Chief Justice Marshall. Judge Story says 
 that anyone would recognize my sketch; that it is capital." 
 See " Letters of Horatio Greenough to his brother Henry 
 Greenough," p. 31. 
 
 THE HON BLE MR. JUSTICE STORY, 
 Salem, Massachusetts. 
 
 RICHMOND, March 26, 1828. 
 MY DEAR SIR : 
 
 I beg you to accept my portrait for which I sat in Washing 
 ton to Mr. Harding, to be preserved when I shall sleep with my 
 fathers, as a testimonial of sincere and affectionate friendship. 
 The remaining hundred dollars you will be so good as to pay 
 to Mr. Harding for the head and shoulders I have bespoke for 
 myself. I shall not wish the portrait designed for myself to be 
 
122 THE POLITICAL AND ECONOMIC 
 
 sent to Richmond till I give directions for it to be accom 
 panied by the head Mr. Greenough means to cast for me. 
 You will very much oblige me by letting me know when those 
 castings are accomplished what is the price at which he sells 
 them, because if they should be held higher than I think my 
 head worth I may probably order more than of them. I 
 hope Mrs. Story & yourself have had a pleasant journey & 
 have found your little family in perfect health. I congratulate 
 you both on this anticipated happiness. I had a pleasant sail 
 through a smooth sea to Norfolk & thence to Richmond. I 
 have seen scarcely any person out of my own family since 
 my return, but, if I may credit appearances, there is rather 
 a more stormy and disturbed atmosphere on land than I en 
 countered in the Bay. The spirit of party is understood to be 
 more bitter than I could have supposed possible. I am, how 
 ever, on the wing for my friends in the upper country, where 
 I shall find near and dear friends occupied more with their 
 farms than with party politics. 
 
 I had one of your fish dressed yesterday, and found it 
 excellent. 
 
 I am, dear Sir, with real regard and esteem, 
 
 Your obedt 
 
 J. MARSHALL. 
 
 I had nearly forgotten to say that I received to-day under cover 
 from Mr. Webster Mr. McGruder s letter announcing the loss 
 of my surtout. I thank you for the trouble you have taken as 
 much as if it had terminated more successfully. 
 Once more farewell. 
 
 Your 
 
 J. M. 
 
 THE HON BLE MR. JUSTICE STORY, 
 Salem, Massachusetts. 
 
 RICHMOND, May ist, 1828. 
 MY DEAR SIR : 
 
 Yesterday on my return from a visit to my sons in our 
 upper country I had the pleasure of receiving your very friendly 
 letter of the loth of April. | The kind partiality you have 
 always manifested towards me has been ever most grateful to 
 my heart. No gratification is more pure or more exalted than 
 the regard of those we esteem^ I received at the same time a 
 
DOCTRINES OF JOHN MARSHALL 123 
 
 letter from Mr Harding dated the 6th of April informing that 
 he should leave Washington within a fortnight from that day, 
 and requesting me to direct the disposition he should make of 
 the portrait I had requested him to draw for my use. As he 
 had left Washington ten days before his letter reached me I 
 could give no directions on the subject and have not written to 
 him. I presume he is in Boston. Will you have the goodnes 
 to let him know that his letter was not answered because it 
 was not received, & that I will thank him if he has left the 
 portrait in Washington to let me know with whom it remains, 
 and if it is with him to deliver it to you? I shall rely on you 
 to give it house room till the representation of the Court in 
 costume is prepared when I must make arrangements to have 
 both, together with the head in plaister, conveyed to this place. 
 I believe I said something to you on this subject in my last 
 letter. 
 
 I was a good deal provoked at the publication in the Mary- 
 lander, not because I have any objection to its being known 
 that my private judgement is in favor of the re-election of 
 Mr Adams, but because I have great objections to being repre 
 sented in the character of a furious partisan. Intemperate 
 language does not become my age or office, and is foreign from 
 my disposition and habits. I was therefore not a little vexed 
 at a publication which represented me as using language which 
 could be uttered only by an angry party man. As I knew I had 
 never conversed on the subject except confidentially with 
 friends I was persuaded that the communication to the printer 
 could not have been direct, and that it had been a good deal 
 metamorphosed in its journey to him. On my late visit to the 
 upper country I was informed that this was the fact. One 
 of my nephews for whom I feel great regard and who was 
 on the Adams convention was asked in Baltimore by a gentle 
 man of that place if he knew my opinion respecting the candi 
 dates for the Presidency. On his answering that I seldom 
 mentioned the subject, but that he had heard me say that 
 though I had not voted for upwards of twenty years I should 
 probably vote at the ensuing election, the gentleman observed 
 that he supposed I should consider the election of Jackson as a 
 virtual dissolution of the government. The observation was 
 received with a smile & some light expression of its extrava 
 gance, and upon the strength of this circumstance a communi- 
 
i2 4 THE POLITICAL AND ECONOMIC 
 
 cation was made which produced the publication in the Mary- 
 lander. On seeing it my nephew wrote to a friend in Balti 
 more requesting him to enquire whether it was made on the 
 strength of his communication, and if it was, enclosing a pub 
 lication denying that he had ever authorized it or had ever 
 heard me use such language as had been ascribed to me. The 
 editor of the Marylander was in a situation when the letter was 
 received to prevent the enquiry which was directed, and his 
 death has put an end to that part of the business. My nephew 
 stated the affair to me while in the mountain country, and was 
 too much chagrined for me to add to his mortification by 
 blaming him. I must bear that newspaper scurrility which I 
 had hoped to escape, and which is generally reserved for more 
 important personages than myself. It is some consolation 
 that it does not wound me very deeply. 
 
 I am glad to hear that Mrs Story and yourself had a pros 
 perous journey homeward. The epidemic you mention has 
 prevailed extensively in Richmond, and has in some instances 
 been fatal. I am happy to hear that it has not been so in 
 your family. 
 
 You will soon be on your spring circuit, if (not) already 
 engaged on it. I wish you a pleasant [torn], and am, with 
 affection and esteem, 
 
 Your 
 
 J. MARSHALL. 
 
 THE HON BLE MR. JUSTICE STORY, 
 Salem, Massachusetts. 
 
 RICHMOND, Oct. 29th, 1828. 
 MY DEAR SIR : 
 
 I have just finished the perusal of your centennial discourse 
 on the first settlement of Salem, and while fresh under its 
 influence take up my pen to thank you for the pleasure it has 
 given me. You have drawn a vivid picture, and, I believe, a 
 faithful likeness of those extraordinary men who first peopled 
 New England, and my feelings as well as my judgement have 
 accompanied you in your rapid sketch of the character and 
 conduct of their descendants. I wish the admonitory part may 
 have its full effect on others as well as on those to whom it was 
 particularly addressed. Some of our southern friends might 
 benefit from the lesson it inculcates. 
 
DOCTRINES OF JOHN MARSHALL 125 
 
 But I have been still more touched with your notice of the 
 red man than of the white. The conduct of our forefathers 
 in expelling the original occupants of the soil grew out of so 
 many mixed motives that any censure which philanthropy may 
 bestow upon it ought to be qualified. The Indians were a 
 fierce and dangerous enemy whose love of war made them 
 sometimes the aggressors, whose numbers and habits made 
 them formidable, and whose cruel system of warfare seemed 
 to justify every endeavour to remove them to a distance from 
 civilized settlements. It was not until after the adoption of 
 our present government that respect for our own safety per 
 mitted us to give full indulgence to those principles of humanity 
 and justice which ought always to govern our conduct towards 
 the aborigines when this course can be pursued without ex 
 posing ourselves to the most afflicting calamities. That time, 
 however, is unquestionably arrived, and every oppression now 
 exercised on a helpless people depending on our magnanimity 
 and justice for the preservation of their existence impresses 
 a deep stain on the American character. I often think with 
 indignation on our disreputable conduct (as I think) in the 
 affair of the Creeks of Georgia; and I look with some alarm 
 on the course now pursuing in the Northwest. Your observa 
 tions on this subject are eloquent and in perfect accordance 
 with my feelings. But I turn with most pleasure to that fine 
 passage respecting the Lady Arabella Johnson. I almost envy 
 the occasion her sufferings and premature death have fur 
 nished for bestowing that well merited eulogy on a sex which 
 so far surpasses ours in all the amiable and attractive virtues of 
 the heart, in all those qualities which make up the sum of 
 human happiness and transform the domestic fireside into an 
 elysium. I read the passage to my wife, who expressed such 
 animated approbation of it as almost to excite fears for that 
 exclusive admiration which husbands claim as their peculiar 
 privilege. Present my compliments to Mrs Story and say for 
 me that a lady receives the highest compliment her husband 
 can pay her when he expresses an exalted opinion of the sex, 
 because the world will believe that it is formed on the model 
 he sees at home. 
 
 I have read with much interest the character you have drawn 
 of our deceased friend and brother, the lamented Judge 
 Trimble. Most richly did he merit all you have said of him. 
 
126 THE POLITICAL AND ECONOMIC 
 
 His place, I fear, cannot be completely supplied. I was de 
 sirous of having the character republished in our papers, but 
 was restrained by the flattering introduction of my name. My 
 modesty was alarmed by the apprehension that the request for 
 its publication might be ascribed as much to vanity as to my 
 deep feeling for departed worth. 
 
 Most cordially do I congratulate you on the appointment of 
 our friend Hopkinson. 
 
 With affectionate esteem, I am, dear Sir, 
 
 Your 
 
 J. MARSHALL. 
 
 Robert Trimble, of Kentucky, who is mentioned at the end 
 of the above letter, was appointed one of the Justices of the 
 Supreme Court May 9, 1826, and died August 25, 1828. 
 Judge Story s sketch of his character was printed in the Co 
 lumbian Sentinel of September 17. See Story s " Life and 
 Letters of Joseph Story," Vol. I, pp. 541-543. 
 
 Joseph Hopkinson, also mentioned at the end of the letter, 
 was appointed in 1828 by President J. Q. Adams, Judge of 
 the District Court for the Eastern District of Pennsylvania, 
 and held the office until his death in January, 1842. 
 
 THE HON BLE MR. JUSTICE STORY, 
 Salem, Massachusetts. 
 
 RICHMOND, June nth, 1829. 
 MY DEAR SIR : 
 
 I had the pleasure some time past of receiving your letter 
 inclosing a copy of that which transmitted a copy of his com 
 mission to our friend Judge Hopkinson. I am the more grat 
 ified by the flattering terms of the letter when I recollect by 
 whom the copy was taken. I am sure you told her in my name 
 by anticipation how much I was delighted by such a letter 
 copied by such a hand. 
 
 I am almost ashamed of my weakness and irresolution when 
 I tell you that I am a member of our convention. I was in 
 earnest when I told you that I would not come into that body, 
 and really believed that I should adhere to that determina 
 tion ; but I have acted like a girl addressed by a gentleman she 
 does not positively dislike, but is unwilling to marry. She is 
 sure to yield to the advice and persuasion of her friends. 
 
DOCTRINES OF JOHN MARSHALL 127 
 
 I wrote from Washington signifying my wish not to be 
 brought forward, and desiring that the attention of the dis 
 trict might be directed to some other person, but the letter was 
 mentioned to a very few, and those few advised that it should 
 not be communicated, but that I should remain free to act 
 on my return as my judgement might direct. 
 
 The committee appointed at this place to nominate had writ 
 ten to me at Washington, but the letter reached that place the 
 day of my departure or the day afterwards, and of course was 
 not received. A duplicate was transmitted to me a few days 
 after my arrival in Richmond, which I answered immediately, 
 acknowledging my grateful sense of the favorable opinion 
 which had led to my nomination, but declaring my unwilling 
 ness to become a member of the convention, and declining the 
 honour intended me. The committee would not act upon this 
 letter; but in the meantime it was rumoured in the town that 
 I declined being voted for, in consequence of which I was 
 pressed so earnestly on the subject by friends whose opinions 
 I greatly value that my resolution began to stagger. It was 
 said that whether I took any part in the debate or not, my 
 services were counted on as of real importance. The com 
 mittee addressed a second letter to me containing assurances 
 of their anxious desire that I would reconsider the resolution 
 I had formed, and assent to what they were certain was the 
 general wish of the district. As is usual I yielded and gave 
 a reluctant consent to serve if I should be elected. Such is 
 the history of the business. I assure you I regret being a 
 member, and could I have obeyed the dictates of my own judge 
 ment I should not have been one. I am conscious that I can 
 not perform a part I should wish to take in a popular assembly ; 
 but I am like Moliere s Medecin malgre lui. 
 
 The body will contain a great deal of eloquence as well as 
 talent, and yet will do, I fear, much harm with some good. 
 Our freehold suffrage is, I believe, gone past redemption. It 
 is impossible to resist the influence, I had almost said con 
 tagion of universal example. 
 
 With great esteem and affection, 
 
 I am, my dear Sir, your obedt 
 
 J. MARSHALL. 
 
 The convention referred to in this letter was the convention 
 for revising the Constitution of Virginia. 
 
128 THE POLITICAL AND ECONOMIC 
 
 THE HON BLE MR. JUSTICE STORY, 
 Salem, Massachusetts. 
 
 RICHMOND, July 3d, 1829. 
 MY DEAR SIR : 
 
 Your favor of the 23d of June accompanying Mr. Brazer s 
 discourse at the interment of Doctor Holyoke, and your very 
 interesting address to the bar of Suffolk at their anniversary 
 on the 4th of Septr, 1821, reached me a few days past. It is 
 impossible to read the first without strong impressions of the 
 worth both of Doctor Holyoke and Mr. Brazer. 
 
 Your address was of course read with pleasure and atten 
 tion. It takes, as is your custom, a very comprehensive view 
 of the subject, of the law and of the distinguished persons 
 who have adorned it. It presents strong incentives to exer 
 tion. 
 
 Directly after writing my last letter I saw your appointment 
 to the Dane Professorship, and anticipated your acceptance of 
 it. The situation imposes duties which I am sure you will dis 
 charge in a manner useful to others and conducive to your own 
 fame. I did not, however, anticipate that the labour would 
 immediately press so heavily on you as your letter indicates. 
 Four octavo volumes in five years is a heavy requisition on a 
 gentleman whose time is occupied by duties which cannot be 
 neglected. I am confident that no person is more equal to the 
 task than yourself, but I cannot help thinking that the publica 
 tion may be postponed to advantage. I presume the work will 
 be in the form of lectures, and I suspect you will find it ad 
 visable to postpone the publication of them till they have been 
 revised for a second course. Precipitation ought carefully to 
 be avoided. This is a subject on which I am not without ex 
 perience. 
 
 I hope your attention has been turned to the two great cases 
 we have under advisement. I wish you would place your 
 thoughts upon paper. I am the more anxious about this as I 
 have myself not considered them, and fear that I shall be pre 
 vented from bestowing on them the attention they ought to 
 receive. Mr. Thompson, I presume, will look thoroughly into 
 that from New York and be prepared in it, but if the majority 
 of the Court should not concur with him it will be necessary 
 that preparation should be made for such an event. 
 
 We shall have a good deal of division and a good deal of 
 
DOCTRINES OF JOHN MARSHALL 129 
 
 heat, I fear, in our convention. The freehold principle will, I 
 believe, be lost. It will, however be supported with zeal. If 
 that zeal could be successful I should not regret it. If we find 
 that a decided majority is against retaining it I should prefer 
 making a compromise by which a substantial property qualifica 
 tion may be preserved in exchange for it. I fear the excessive 
 [torn] cident to victory after a hard fought battle continued 
 to the last extremity may lead to universal suffrage or some 
 thing very near it. What is the prop[erty] qualification for 
 your Senate? How are your Senators apportioned on the 
 State ? And how does your system work ? 
 
 The question whether white population alone, or white popu 
 lation compounded with taxation, shall form the basis of repre 
 sentation will excite perhaps more interest than even the free 
 hold suffrage. I wish we were well through the difficulty. 
 
 Farewell. I am, my dear Sir, affectionately & truely 
 
 Your 
 
 J. MARSHALL. 
 
 THE HON BLE MR. JUSTICE STORY, 
 Cambridge, Massachusetts. 
 
 RICHMOND, Septr 3Oth, 1829. 
 MY DEAR SIR : 
 
 I have read with great pleasure your discourse pronounced 
 as Dane Professor of Law in Harvard University. It is in 
 your best style of composition. 
 
 You have marked out for yourself a course of labour which 
 is sufficiently arduous ; but I believe you love to struggle with 
 difficulty, and you have generally the good fortune or merit to 
 overcome it. At seventy-four you will find indolence creeping 
 over you. But we will not anticipate the evil. 
 
 You have not spared the students of law more than the 
 Professor. You have prescribed for them a most appalling 
 course. Our southern youths would stumble at the threshold, 
 and think such a task too formidable for even a commencement. 
 You Yankees have more perseverance, or think more justly on 
 the proposition that he who attempts much may accomplish 
 something valuable, should his success not be complete. 
 
 I hope I shall live to read your lectures. They will form an 
 exception to the plan of life I had formed for myself to be 
 
130 THE POLITICAL AND ECONOMIC 
 
 adopted after my retirement from office, that is to read noth 
 ing but novels and poetry. 
 
 Our convention approaches. I still feel vain regrets at 
 being a member. The chief though not the only cause of 
 these regrets is that non sum qualis eram. I can no longer 
 debate. Yet I cannot apply my mind to any thing else. 
 
 Farewell, with affectionate esteem I remain your 
 
 J. MARSHALL. 
 
 THE HON BLE MR. JUSTICE STORY, 
 Cambridge, Massachusetts. 
 
 RICHMOND, October i5th, 1830. 
 MY DEAR SIR : 
 
 Ascribe my delay in thanking you for the sermon drawing 
 the character of your late Chief Justice, and for the excellent 
 addendum you have made to it, to the indolence and negli 
 gence of age, or to any cause rather than to indifference to 
 any mark of your kind recollection. I have read both with 
 attention and with real gratification. I had formed a high 
 opinion of the late Chief Justice Parker from what I had heard 
 of him, especially from yourself, but that opinion was certainly 
 raised by the more minute detail of his qualities and by the 
 abridged biography contained in the work for which I am 
 thanking you. My regret for the loss of this estimable gentle 
 man was much enhanced by the fear that Massachusetts might 
 be able to supply his place by seducing from the Federal bench 
 a gentleman whose loss would be irreparable. I felicitate my 
 self and my country on the disappointment of this apprehen 
 sion. 
 
 While I am acknowledging favors I thank you also for a 
 box of fish received the other day. I have not yet tasted them, 
 but have no doubt of their excellence, and shall not be long in 
 putting it to the test. 
 
 I find our brother McClean could not acquiesce in the de 
 cision of the Court in the Missouri case. I am sorry for this, 
 and am sorry too to observe his sentiments on the 25th sec. 
 of the judicial act. I have read in the last volume of Mr 
 Peters the three dissenting opinions delivered in that case, and 
 think it requires no prophet to predict that the 25th section is 
 to be repealed, or to use a more fashionable phrase, to be nulli 
 fied by the Supreme Court of the United States. I hope the 
 
DOCTRINES OF JOHN MARSHALL 131 
 
 case in which this is to be accomplished will not occur during 
 my time, but accomplished it will be at no very distant period. 
 
 I am mortified at the number of causes left undecided at the 
 last term. I am still more mortified at the circumstance that I 
 am unable to prepare opinions in them. The cases of Soulard 
 and of Smith I suppose must wait for additional information 
 or for the certainty that none is to be obtained, but I had hoped 
 to prepare something in the lottery case. I am chagrined at 
 discovering that I have left the statement of the case behind 
 me. It is also cause of real surprise as well as chagrin to find 
 that the case of Cathcart and Robertson was not decided. I 
 really thought the Court had made up an opinion on it. 
 
 I have read with peculiar pleasure the letter of Mr. Madison 
 to the editor of the North American Review. He is himself 
 again. He avows the opinions of his best days, and must be 
 pardoned for his oblique insinuations that some of the opinions 
 of our Court are not approved. Contrast this delicate hint 
 with the language Mr. Jefferson has applied to us. He is at 
 tacked with some bitterness by our Enquirer, who has arrayed 
 his report of 1799 against his letter. I never thought that 
 report could be completely defended ; but Mr. Madison has 
 placed it upon its best ground, that the language is incautious, 
 but is intended to be confined to a mere declaration of opinion, 
 or is intended to refer to that ultimate right which all admit, 
 to resist despotism, a right not exercised under a constitution, 
 but in opposition to it. 
 
 Farewell, with the best wishes for your happiness, 
 I am yours affectionately. 
 
 J. MARSHALL. 
 
 The sermon mentioned in the above letter is a sermon on 
 the decease of Chief Justice Isaac Parker by John Gorman 
 Palfrey. Appended to it is " a sketch of Judge Parker s 
 character as an advocate and lawyer," " by an eminent Judge 
 of the Supreme Court of the United States." 
 
 The " brother McLean " mentioned was John McLean who 
 became an Associate Justice of the Supreme Court in January, 
 1830. The case here referred to was Craig v. Missouri (4 
 Peters, 410), in which for the first time the Court considered 
 what was meant by the prohibition on the States to emit bills 
 of credit. The subject was closely connected with the validity 
 
132 THE POLITICAL AND ECONOMIC 
 
 of the issues of the State banks. The views of Judge McLean 
 finally prevailed. 
 
 The letter written by Mr. Madison to the Editor of the North 
 American Review, is printed in the North American Review 
 for October, 1830, at the end of Mr. Everett s article on the 
 debate in the Senate of the United States on Mr. Foot s reso 
 lution. 
 
 In the following letter mention is made of " boarding the 
 Judges." During this period the Justices of the Supreme 
 Court were not accompanied by their families when they went 
 to Washington, but had rooms together in some private board 
 ing-house, presumably for the greater convenience it afforded 
 for consultation and discussion of their problems. 
 
 The " copy of Algernon Sydney " refers most likely to " The 
 Letters of Algernon Sydney, in defense of Civil Liberty and 
 against the Encroachments of Military Despotism," which were 
 written by Benjamin Watkins Leigh, and were first printed in 
 the Richmond Enquirer in 1818-1819. Afterward they were 
 published in 1830, in an octavo pamphlet. 
 
 THE HON BLE MR. JUSTICE STORY, 
 Cambridge near Boston. 
 
 RICHMOND, May 3d, 1831. 
 MY DEAR SIR : 
 
 By the schooner King I send you a barrel containing a few 
 hams which are to be deposited for you with Fisher and Power 
 of Boston. As the address is marked on the cask I hope they 
 will reach you in safety, and will be found reasonably well 
 flavoured. 
 
 What do the wise men in the East say to the tabula rosa 
 which is made in the cabinet ? Our quid nuncs were astonished 
 at first, but soon discovered that the really voluntary resigna 
 tions were proofs of unparallelled magnanimity and patriotism, 
 and that those which were compulsory were quite comme il faut. 
 This is not only as it should be, but as it always will be. 
 
 I am apprehensive that the revolutionary spirit which dis 
 played itself in our circle will, like most other revolutions, work 
 inconvenience and mischief in its progress. I believe Mr 
 Brown does not count on boarding the Judges next winter ; and 
 if any other arrangement is made tis entirely unknown to me. 
 
DOCTRINES OF JOHN MARSHALL 133 
 
 We have like most other unquiet men, disconted with the things 
 that are, discarded accommodations which are reasonably con 
 venient without providing a substitute. We pull down without 
 enquiring how we are to build up. The matter rests I under 
 stand with our younger brother, and he has probably committed 
 it to some other person. If he had made an arrangement we 
 should I presume, have heard something about it. I think this 
 is a matter of some importance, for if the Judges scatter ad 
 libitum the docket, I fear, will remain quite compact, losing 
 very few of its causes; and the few it may lose will probably 
 be carried off by seriatim opinions. Old men, however, are 
 timid, and I hope my fears may be unfounded. 
 
 I sent you some time past a copy of Algernon Sydney. It is 
 rather antediluvian, but you expressed a wish to see it. The 
 writer is among our ablest men. Most of his friends have been 
 classed among the Jacksonians, but I think their hostility to Mr. 
 Adams rather than their affection for General Jackson has ar 
 ranged them under his banners. 
 
 The world has been so convulsed by peace that I suspect it 
 must have war in order to be made quiet. Materials in 
 abundance have been prepared for a general conflagration, and 
 unless the mass of debts operates as an extinguisher I perceive 
 nothing which can prevent the spread of the flame. I am quite 
 in amaze at the reform in Great Britain, and can come to only 
 one conclusion, which is that I know nothing about it, and can 
 form no opinion at all satisfactory even to myself. The great 
 teacher, experience, can alone inform us what is best for our 
 selves and for the world. 
 
 I presume you are engaged on your new circuit. I set out 
 the last of this week. 
 
 Farewell, with every wish for your happiness, I am yours 
 truely. 
 
 J. MARSHALL. 
 
 THE HON BLE MR. JUSTICE STORY, 
 Cambridge, Massachusetts. 
 
 RICHMOND, June 26th, 1831. 
 MY DEAR SIR : 
 
 I have received your two letters of the 25th & 3ist of May 
 and have adopted your opinion respecting the admiralty juris 
 diction, though in doing so I have reversed the decree of my 
 
134 THE POLITICAL AND ECONOMIC 
 
 brother Barbour. I felt some doubt whether General Smith 
 was not shaken by the case of Ramsay v. Allyne, in which the 
 court supposed that the note certainly ousted the admiralty of 
 its jurisdiction, without deciding whether independent of the 
 note jurisdiction would have existed. I think there is a good 
 deal of force in the argument of Wirt and Meredith that the 
 original cause of action did not merge in the note. How 
 ever, I have maintained the jurisdiction. 
 
 I am greatly perplexed about our board for next winter. 
 You know what passed while you were with us, and how much 
 discontent was expressed at all previous arrangements. I was 
 unwilling to say any thing for two reasons. Being at any rate 
 a bird of passage, whose continuance with you cannot be long, 
 I did not chuse to permit my convenience or my wishes to 
 weigh a feather in the permanent arrangements of my brethren. 
 But in addition, I felt serious doubts, although I did not men 
 tion them, whether I should be with you at the next term. 
 What I am about to say is, of course, in perfect confidence 
 which I would not breathe to any other person whatever. I 
 had unaccountably calculated on the election of P t taking 
 place next fall, and had determined to make my continuance 
 in office another year dependent on that event. You know 
 how much importance I attach to the character of the person 
 who is to succeed me, and calculate the influence which proba 
 bilities on that subject would have on my continuance in office. 
 This, however, is a matter of great delicacy on which I cannot 
 and do not speak. My erroneous calculation of the time of 
 election was corrected as soon as the pressure of official duty 
 was removed from my mind, and I had nearly decided on my 
 course, but recent events produce such real uncertainty respect 
 ing the future as to create doubts whether I ought not to await 
 the same chances in the fall of 32 which I had intended to await 
 in the fall of 31. This obliges me to look forward to our quar 
 ters for the next winter. This uncertainty as to my being with 
 you which had prevented my taking any part in our previous 
 consultations on this subject, if consultations they may be 
 called, prevented my saying anything on the last day. It 
 seemed then to be conclusively determined that we did not 
 remain with Brown, and I understood that Judge Baldwin 
 would provide lodgings. He said something of relying on his 
 sister to select them, to which I was perfectly agreed. He was 
 
DOCTRINES OF JOHN MARSHALL 135 
 
 of course to communicate anything which might be done. Not 
 having heard a syllable from him I conclude nothing has been 
 done. We cannot, however, do anything for ourselves till we 
 know that he does nothing for us. In this state of uncertainty 
 I have thought of writing to him when he comes to Philadelphia 
 in the fall, and if he has made no arrangement to provide for 
 ourselves. You, Judge Thompson, Judge Duval, and myself 
 may, I hope, continue to mess together. Brother Duval must 
 be with us or he will be unable to attend consultations. I have 
 supposed you may mention this subject to our brother Thomp 
 son, and if he concurs in it write to brother Duval to engage the 
 old rooms for us at Brown s or to locate us at some other place 
 in the neighborhood. This, however, must depend on the intel 
 ligence to be obtained from Judge Baldwin. 
 
 I hear with feelings of deepest sympathy the family afflic- **% 
 tion you have sustained, and participate sincerely in the grief 
 which both Mrs. Story and yourself must feel. There are 
 wounds into which time, and time alone, can pour its healing 
 balm. Consolation is vain. I thank you for the verses which 
 the melancholy occasion has produced. They are replete with 
 the deep parental feeling it was calculated to call forth. 
 
 You ask me if Mrs. Marshall and myself have ever lost a / 
 child. We have lost four, three of them bidding fairer for 
 health and life than any that have survived them. One, a , 
 daughter about six or seven, was brought fresh to our minds 
 by what you say of yours. She was one of the most fasci 
 nating children I ever saw. She was followed within a fort 
 night by a brother whose death was attended by a circumstance 
 we can never forget. When the child was supposed to be dying 
 I tore the distracted mother from the bedside. We soon after 
 wards heard a voice in the room which we considered as indi 
 cating the death of the infant. We believed him to be dead. 
 [I went] into the room and found him still breathing. I re 
 turned [and] as the pang of his death had been felt by his 
 mother and [I] was confident he must die, I concealed his 
 being alive and prevailed on her to take refuge with her mother 
 who lived the next door across an open square from her. The 
 child lived two days, during which I was agonized with its 
 condition and with the occasional hope, though the case was 
 desperate, that I might enrapture his mother with the intelli 
 gence of his restoration to us. After the event had taken place 
 
136 THE POLITICAL AND ECONOMIC 
 
 his mother could not bear to return to the house she had left 
 and remained with her mother a fortnight. I then addressed 
 to her a letter in verse in which our mutual loss was deplored, 
 our lost children spoken of with the parental feeling which be 
 longed to the occasion, her affection for those who survived was 
 appealed to, and her religious confidence in the wisdom and 
 goodness of Providence excited. The letter closed with a 
 pressing invitation to return to me and her children. This 
 letter has been delayed for the purpose of sending you a copy of 
 \\ T hat I wrote. But t is lost. 
 
 Your affectionate 
 
 J. MARSHALL. 
 
 The child mentioned in the above letter was Judge Story s 
 youngest child, which died in May, 1831. The verses referred 
 to are printed in Story s "Life and Letters of Joseph Story," 
 Vol. II, pp. 57-9. 
 
 The Doctor Physic mentioned in the letter below was Dr. 
 Philip S. Physic, who was at that time the most eminent 
 surgeon in Philadelphia, if not in the whole country. In a 
 memoir of Doctor Physic by Doctor Randolph of Phila 
 delphia there is an interesting account of the operation on 
 Chief Justice Marshall. 59 
 
 THE HON BLE MR. JUSTICE STORY, 
 Cambridge, Massachusetts. 
 
 PHILADELPHIA, Oct. i2th, 1831. 
 MY DEAR SIR 
 
 I had the pleasure of receiving in the course of the mail your 
 very friendly letter of the 6th. 
 
 I have been under the doctor ever since my return in May 
 from North Carolina and have been regularly growing worse. 
 My disease, for which I have to blame myself, was mistaken. 
 My physician suspected it, but I was so confident against him 
 that he never made the experiments necessary to establish the 
 fact. At length I suffered so much pain and became so alarmed 
 as to determine on a visit to this place. I have been here a 
 fortnight. Doctor Physic, whom I consulted immediately, pro 
 ceeded very circumspectly. He made some examinations which 
 led to the belief that I had probably stone in the bladder, and 
 on applying the sound at different intervals has decided that I 
 
 59 Medical Examiner, Vol. II, pp. 280-281, 
 
DOCTRINES OF JOHN MARSHALL 137 
 
 have one. The usual operation was to have been performed a 
 day or two past but the rainy weather has confined the doctor, 
 whose health is extremely delicate, and I must wait till we see 
 the return of the sun. We have now the promise of a fair day, 
 and should our anticipations be realized I count on going 
 through the operation tomorrow. 
 
 I place the most entire confidence in Doctor Physic, never 
 was man better calculated to inspire confidence in a patient than 
 he is. His profound attention to the case and his patient in 
 investigation of the symtoms, added to his very high reputation 
 for skill as a surgeon, produce a firm conviction that nothing 
 will be omitted which can contribute to my recovery. I look 
 with impatience for the operation. 
 
 Our brother Baldwin is here. He seems to have resumed the 
 dispositions which impressed us both so favorably at the first 
 term. This is as it should be. He spoke of you in terms not 
 indicating unfriendliness. He mentioned our next winter s ac 
 commodations in such A manner as to show his decided prefer 
 ence for Mrs. Peyton s, but he has not engaged the apartments. 
 We must make some positivt engagement before the meeting of 
 Congress or we shall separate, and each be under the necessity 
 of providing for himself. I should have urged an immediate 
 decision had I not been restrained by some communications 
 which have passed between Mr. Peters And Mr. Ringold. 
 When Mr. Peters mentioned that subject to me I expressed my 
 decided approbation to the proposal of our friend to receive us 
 in his house provided it was agreeable to our brothers. On 
 reflection I suspect the situation of the house, between the 
 palace and Georgetown, will not be to your mind nor to the 
 mind of the other Judges. I shall suggest this to Peters. 
 Should this conjecture be well founded, I think we shall do 
 well to engage immediately with Mrs. Peyton. 
 
 On the most interesting part of your letter I have felt and 
 still feel, great difficulty. You understand my general senti 
 ments on that subject as well as I do myself. I am most 
 earnestly attached to the character of the department, and to 
 the wishes and convenience of those with whom it has been my 
 pride and my happiness to be associated for so many years. I 
 cannot be insensible to the gloom which lours over us. I have 
 a repugnance to abandoning you under such circumstances 
 which is almost invincible. But the solemn convictions of my 
 
138 THE POLITICAL AND ECONOMIC 
 
 judgment sustained by some pride of character admonish me 
 not to hazard the disgrace of continuing in office a mere in 
 efficient pageant. 
 
 In the course of the summer I resorted to different courses of 
 medicine none of which were of any service to me, but which 
 had a sensible influence on my general health. My nerves, my 
 digestion, and my head were seriously affected. I had found 
 myself unequal to the effective consideration of any subject, 
 and had determined to resign at the close of the year. This 
 determination, however, I kept to myself, being determined to 
 remain master of my own conduct. I at length resolved to 
 take no more medicine, after which I was slowly restored to 
 my former self. This occurred about the time of my leaving 
 Richmond for this place, and notwithstanding the pain I feel, 
 I recover strength daily. I have therefore determined to meet 
 you at the next term, and to postpone anything definitive till 
 then. 
 
 Present my most respectful good wishes to Mrs. Story. I 
 indulge the hope that both of you have recovered firmness 
 enough to receive the dispensations of Providence, however 
 severe, with a mind fulness of the great duties which still remain 
 to be performed. 
 
 With esteem and affection yours truely, 
 
 J. MARSHALL. 
 
 THE HON BLE MR. JUSTICE STORY, 
 Cambridge, Massachusetts. 
 
 PHILADELPHIA, Novr loth, 1831. 
 MY DEAR SIR : 
 
 I learn with much regret from our friend Mr. Peters that 
 you have been seriously indisposed. I fear your various 
 duties confine you too closely. You must, my dear Sir, be 
 careful of your health. Without your vigorous and power 
 ful cooperation I should be in despair, and think the " ship 
 must be given up." 
 
 I have had a most tedious confinement. At length, how 
 ever, I leave my bed and walk across my room. This I do 
 with a tottering feeble step. It is, however, hourly improv 
 ing, and I hope next week to take the boat for Richmond in 
 time to open my court on the 22d. Doctor Physic has added 
 
DOCTRINES OF JOHN MARSHALL 139 
 
 to consumate skill the most kind and feeling attention. I 
 shall never forget him. 
 
 There has been some difficulty about our next winter s ar 
 rangement. You perceive I speak confidently of meeting you. 
 At length it seems fixed that we are to quarter with Ringold. 
 Mr. Peters has written you all about it. I was a little appre 
 hensive that you would be unwilling to locate yourself so far 
 out of the centre of the city, but your other friends seem to 
 think you will be greatly pleased. I am told that our ac 
 commodations as to rooms will be convenient, and as to every- 
 hing else you know they will be excellent. Mr. Johnson, I 
 im told, will quarter by himself, and our brother McLean 
 will of course preserve his former position. The remaining 
 ive will, I hope, be united. 
 
 The Circuit Court is in session in Philadelphia. Our 
 Brother Baldwin has called on me frequently. He is in good 
 icalth and spirits, and I, always sanguine, hope that the next 
 ;rm will exhibit dispositions more resembling those dis- 
 >layed in the first than the last. 
 
 I am at present and have been all the summer very unfit 
 : or serious business. I was not one moment free from pain 
 r rom the time I parted with you till the operation was per- 
 ormed which extracted about 1000 calculi. You may judge 
 low much I suffered. The pain increased daily and disquali- 
 ied me for serious thought. Thank Heaven, I have reason 
 o hope that I am relieved. I am, however, under the very 
 disagreeable necessity of taking medicine continually to pre 
 sent new formations. I must submit too to a severe and 
 most unsociable regimen. Such are the privations of age. 
 You have before you, I trust, many, very many years unclouded 
 }y such dreary prospects. 
 
 Farewell. You have the best wishes of him who is with 
 iffectionate esteem 
 
 Your J, MARSHALL. 
 
 The volume referred to in the following letter as " The 
 American Library of Useful Knowledge " was published in 
 1831, and contained among other essays a discourse by Judge 
 Story on " Developments of Science and Mechanic Art," de- 
 
 ivered before the Boston Mechanics Institute, and reprinted 
 
 n Story s " Miscellaneous Writings." 
 
140 THE POLITICAL AND ECONOMIC 
 
 Hon. Charles F. Mercer and Hon. John S. Barbour, who 
 are referred to in the following letter, were members of the 
 House of Representatives, from Virginia. 
 
 THE HON BLE MR. JUSTICE STORY, 
 Cambridge, Massachusetts. 
 
 RICHMOND, August 2d, 1832 
 MY DEAR SIR : 
 
 I am greatly in your debt, more especially for the first 
 volume of the American Library of Useful Knowledge, and 
 have so long neglected to acknowledge my obligations that I 
 am not sure I should not, according to the practice of in 
 solvents, have put it off altogether had I not been placed in a 
 situation to ask further assistance from you. 
 
 Congress has passed an act to increase and improve its 
 law library, a copy of which has just been transmitted to me 
 by the librarian. It appropriates 500$ for the present year, 
 to be expended in the purchase of law books by the librarian, 
 in pursuance of such catalogue as shall be furnished him by 
 the Chief Justice of the United States. I wish it had been 
 " as shall be furnished him by Mr. Justice Story." How 
 ever, we must correct this erratum as well as we can. 
 
 As I know your appetite for labor, I feel the less compunc 
 tion in offering you a very large share like this. Indeed, if 
 you can take the whole I can readily spare it. Will you then 
 transmit me a list of such law books as you would wish (or 
 rather, as ought in your judgement) to be added to the law 
 library. You probably recollect enough of them without 
 seeing a catalogue to supply a list of those which are want 
 ing. Say if you think there ought to be duplicates of par 
 ticular books. 
 
 The librarian informs me that he has already ordered a 
 continuation of those British reports which are in progress of 
 which he has the beginning volumes, and of the American 
 reporters. 
 
 I ascribe the honor now done me to our friend Peters, and 
 therefore think I may ask him also for aid in my difficulty. I 
 shall probably write to him. 
 
 We are up to the chin in politics. Virginia was always in 
 sane enough to be opposed to the bank of the United States, 
 and therefore hurras for the veto. But we are little doubt- 
 
DOCTRINES OF JOHN MARSHALL 141 
 
 ful how it may work in Pennsylvania. It is not difficult to ac 
 count for the part New York may take. She has sagacity 
 enough to see her interests in putting down the present bank. 
 Her mercantile position gives her a control, a commanding 
 control, over the currency and the exchanges of the country, 
 if there be no bank of the United States. Going for her 
 self she may approve this policy; but Virginia ought not to 
 drudge for her benefit. 
 
 We show our wisdom most strikingly in approving the 
 veto on the harbor bill also. That bill contained an appro 
 priation intended to make Richmond a seaport, which she 
 is not at present, for large vessels fit to cross the Atlantic. 
 The appropriation was whittled down in the House of Rep 
 resentatives to almost nothing, in consequence of the total 
 misunderstanding of the case by Mercer. Yet we wished the 
 appropriation because we were confident that Congress when 
 correctly informed, would add the necessary sum. This too 
 is vetoed ; and for this too our sagacious politicians are thank 
 ful. We seem to think it the summit of human wisdom, or 
 rather of American patriotism, to preserve our poverty. 
 
 Our great political and party guide, The Enquirer, has not 
 been able to make Mr. Barbour pull in the traces. He has 
 broke loose and is fairly in the field. I do not precisely know 
 how this will work. He is supported by the most violent 
 of the state right party, who are also strong for the existing 
 President. There might be some difficulty in managing this 
 tangled business were not the Jackson majority so overwhelm 
 ing as to leave his friends nothing to fear from a division. 
 Some of the friends of Barbour are secretly for Calhoun ; 
 but though attached to nullification in principle they dare not 
 favor the name. Besides the basement story is so firm that 
 those who are supported on it dare not totter. 
 
 Things to the South wear a very serious aspect. If we 
 can trust appearances the leaders are determined to risk all 
 th A consequences of dismemberment. I cannot entirely diss- 
 rniss the hope that they may be deserted by their followers, 
 at least to such an extent as to produce a cause at the 
 Rubicon. They undoubtedly believe that Virginia will sup 
 port them. I think they are mistaken both with respect to 
 Virginia and North Carolina. I do not think either State 
 will embrace this mad and wicked measure. New Hampshire 
 
142 THE POLITICAL AND ECONOMIC 
 
 and Maine seem to belong to the tropics. It is time for New 
 Hampshire to part with Webster and Mason. She has no 
 longer any use for such men. 
 
 I am just preparing for my usual excursion to the moun 
 tains. Would that I could meet you there. It would se 
 cure you from the cholera. Our whole seaboard will, I fear, 
 be overrun with it. In New York it has, I perceive, been 
 carried to the western frontier. It is too visiting our lakes. 
 You are surrounded by it. That Providence may protect us, 
 especially Boston and Richmond, is the earnest prayer of 
 your truely affectionate 
 
 J. MARSHALL. 
 
 THE HON BLE MR. JUSTICE STORY, 
 Cambridge, Massachusetts. 
 
 RICHMOND,, September 22d, 1832. 
 MY DEAR SIR : 
 
 I am greatly indebted to you for your favor of the I4th. 
 Without your assistance I should have found it impossible, 
 or at least very difficult, to comply with the duty assigned me 
 by Congress. I have given you a great deal of trouble, which 
 I regret, the less because you love law and love labor. 
 Forty years hence your passion for the one and the other 
 may be somewhat diminished. 
 
 I have curtailed your list of books very much for two 
 reasons. One, that by far the greater number of those you 
 have mentioned are already in the library, and I am unwilling 
 to exhaust the fund by procuring duplicates; the other, that 
 we may supply what is required by a better selection of dupli 
 cates when we meet this winter, if we should meet, and shall 
 have the advantage of knowing precisely how much money 
 remains to be employed. I have said nothing about the Amer 
 ican reports, because I understand from the librarian that he 
 has already directed them all to be purchased. In my letter 
 inclosing the list I have said that I so understand his com 
 munication and have requested, if I have misunderstood him, 
 that he will correct the error by purchasing all the American 
 reports not in the library. This is a fund of information 
 on which the Supreme Court must be always at liberty to 
 draw ad libitum. 
 
 I am very much gratified at hearing that you are so near 
 
DOCTRINES OF JOHN MARSHALL 143 
 
 completing your course on constitutional law, and enriching 
 the political and legal literature of your country with it. The 
 task was arduous, but not above your strength, and you have 
 engaged in it with hearty good will. I anticipate much pleas 
 ure as well as information from perusing the work, and can 
 assure you in anticipation that I shall not be among the 
 growlers you may expect to hear. I shall not be among 
 those who bring on you the charge of " apostacy " and ultra- 
 ism. I shall like to see how in your quotations from the sage 
 you mention you imitate the bee in extracting honey from 
 poison. I have no doubt, however dexterous the operation, 
 that you will be well stung in requital for your skill and 
 industry. 
 
 If the prospects of our country inspire you with gloom how 
 do you think a man must be affected who partakes of all your 
 opinions and whose geographical position enables him to see 
 a great deal that is concealed from you. I yield slowly and 
 reluctantly to the conviction that our constitution cannot 
 last. I had supposed that north of the Potowmack a firm 
 and solid government competent to the security of rational 
 liberty might be preserved. Even that now seems doubtful. 
 The case of the south seems to me to be desperate. Our 
 opinions are incompatible with a united government even 
 among ourselves. The union has been prolonged thus far by 
 miracles. I fear they cannot continue. 
 
 Yours affectionately, 
 
 J. MARSHALL. 
 
 THE HON BLE MR. JUSTICE STORY, 
 Cambridge, Massachusetts. 
 
 RICHMOND, Deer 25th, 1832. 
 MY DEAR SIR : 
 
 I had yesterday the pleasure of receiving your letter of the 
 iQth, inclosing a proof sheet of the title page of your great 
 work. I anticipate the pleasure its perusal will give me. 
 
 Truely sensible as I am that the commendation bestowed 
 on the Chief Justice, both in the dedication and the preface, 
 greatly transcends his merit, and confident as I am that the 
 judgement of the public will confirm this opinion, I am yet 
 deeply penetrated by the evidence it affords of the continuance 
 of that partial esteem and friendship which I have cherished 
 
144 THE POLITICAL AND ECONOMIC 
 
 for so many years, and still cherish as one of the choicest 
 treasures of my life. The only return I can make is locked 
 up in my own bosom, or communicated in occasional con 
 versation with my friends. 
 
 I congratulate you on the accomplishment of your pur 
 pose and on finishing the Herculean task you had undertaken. 
 I know no person but yourself who could have sustained 
 properly this vast additional labor. I cannot doubt either the 
 ability or correctness with which it is executed, and am cer 
 tain in advance that I shall read every sentence with entire 
 approbation. It is a subject on which we concur exactly. 
 Our opinions on it are, I believe, identical. Not so with Vir 
 ginia or the South generally. 
 
 Our legislature is now in session, and the dominant party 
 receives the message of the President to Congress with en 
 thusiastic applause. Quite different was the effect of his 
 proclamation. That paper astonished, confounded, and for 
 a moment silenced them. In a short time however, the 
 power of speech was recovered, and was employed in bestow 
 ing on its author the only epithet which could possibly weigh 
 in the scales against the name of " Andrew Jackson," and 
 countervail its popularity. Imitating the Quaker who said 
 the dog he wished to destroy was mad, they said Andrew Jack 
 son had become a Federalist, even an ultra Federalist. To 
 have said he was ready to break down and trample on every 
 other department of the government would not have injured 
 him, but to say that he was a Federalist, a convert to the 
 opinions of Washington, was a mortal blow under which he 
 is yet staggering. 
 
 The party seems to be divided. Those who are still true 
 to their President pass by his denunciation of all their former 
 theories ; and though they will not approve the sound opinions 
 avowed in his proclamation are ready to denounce nullifica 
 tion and to support him in maintaining the union. This is 
 going a great way for them, much farther than their 
 former declarations would justify the expectation of, and 
 much farther than mere love of union would carry 
 them. 
 
 You have undoubtedly seen the message of our Governor 
 and the resolutions reported by the committee to whom it 
 was referred, a message and resolutions which you will 
 
DOCTRINES OF JOHN MARSHALL 145 
 
 think skillfully framed had the object been a civil war. They 
 undoubtedly hold out to South Carolina the expectation of 
 support from Virginia; and that hope must be the founda 
 tion on which they have constructed their plan for a southern 
 confederacy or league. A want of confidence in the present 
 support of the people will prevent any direct avowal in favor 
 of this scheme by those whose theories and whose secret 
 wishes may lead to it ; but the people may be entangled by the 
 insane dogmas which have become axioms in the political 
 creed of Virginia, and involved so inextricably in the laby 
 rinth into which those dogmas conduct them, as to do what 
 their sober judgement disapproves. 
 
 On Thursday these resolutions are to be taken up, and the 
 debate will, I doubt not, be ardent and tempestuous enough. 
 I pretend not to anticipate the result. Should it countenance 
 the obvious design of South Carolina to a form of southern 
 confederacy, it may conduce to a southern league, never to 
 a southern government. Our theories are incompatible with 
 a government for more than a single State. We can form no 
 union which shall be closer than an alliance between sover 
 eigns. In this event there is some reason to apprehend in 
 ternal convlusion. The northern and western section of our 
 State, should a union be maintained north of the Potowmack, 
 will not readily connect itself with the South. At least such 
 is the present belief of their most intelligent men. Any ef 
 fort on their part to separate from Southern Virginia and 
 unite with a northern confederacy may probably be punished 
 as treason. " We have fallen on evil times." 
 
 I thank you for Mr. Webster s speech. Entertaining the 
 opinion he has expressed respecting the general course of the 
 administration, his patriotism is entitled to the more credit 
 for the determination he expressed in Faneuil Hall to sup 
 port it in the great effort it promises to make for the pres 
 ervation of the union. No member of the then opposition 
 avowed a similar determination during the Western Insur 
 rection, which would have been equally fatal had it not been 
 quelled by the well timed vigor of General Washington. We 
 are now gathering the bitter fruits of the tree even before 
 that time planted by Mr. Jefferson, and so industriously and 
 perseveringly cultivated by Virginia. 
 
 You have doubtless heard from Mr. Peters the affliction 
 
146 THE POLITICAL AND ECONOMIC 
 
 with which our brother Baldwin has been visited. It can 
 not, I trust, be of long continuance. 
 
 We shall meet once more at Washington, Till then adieu. 
 Your faithful and affectionate friend. 
 
 J. MARSHALL. 
 
 The speech mentioned in the above letter was delivered by 
 Daniel Webster at a crowded meeting held in Faneuil Hall, 
 in the forenoon of December 17, 1832. It is preserved only 
 in the contemporary newspaper reports, which are said to be 
 somewhat abridged. Referring to President Jackson s Proc 
 lamation, Mr. Webster said : " Mr. Chairman, the general 
 principles of the Proclamation are such as I entirely approve. 
 I esteem them to be the true principles of the Constitution. 
 It must now be apparent to every man, that this doctrine of 
 nullification means resistance to the laws by force. It is but 
 another name for civil war. . . . The President has declared 
 that in meeting the exigencies of this crisis, it is his de 
 termination to execute the laws, to preserve the Union by all 
 constitutional means; to arrest, if possible, by moderate, but 
 fair measures, the necessity of a recourse to force; and so to 
 conduct, that the curse impending on the shedding of fra 
 ternal blood shall not be called down by any offensive act on 
 the part of the United States. In all this I most cordially 
 concur. ... I think I can say nothing more satisfactory at 
 this meeting, or to the people of this Commonwealth than 
 that in this way of meeting this crisis I shall give the Presi 
 dent my entire and cordial support. . . . Mr. Chairman, in 
 this alternative my choice is made. I am for the Union as 
 it is. I am content with no Government less than that which 
 embraces the whole Four and Twenty States. I am for the 
 Constitution as it is; a Constitution under which those Four 
 and Twenty States have risen to a height of prosperity, unex 
 ampled, in the history of mankind. I shall support the Presi 
 dent in maintaining this Union and this Constitution; and 
 the cause shall not fail for want of any aid, any effort, or 
 any zealous co-operation of mine." 
 
 The " affliction with which our brother Baldwin has been 
 visited," mentioned above, is best explained in a letter from 
 Philadelphia, dated December 27, in which Mr. Webster 
 writes to Judge Story: " I learn that Judge Baldwin has 
 
DOCTRINES OF JOHN MARSHALL 147 
 
 recently manifested an alienation of mind. He is now under 
 the hands of medical men & confined to his own house. It is 
 said to be a decided case." Henry Baldwin was born in New 
 Haven, Connecticut, January 14, 1780, and was appointed by 
 President Jackson an Associate Justice of the Supreme Court 
 in January, 1830, which office he held until his death, in 
 Philadelphia, April 21, 1844. In 1837 ne published a volum 
 inous pamphlet entitled " A general View of the Origin and 
 Nature of the Constitution and Government of the United 
 States," in opposition to the constitutional doctrines of Judge 
 Marshall and Judge Story. 
 
 The " totally forgotten letter " mentioned in the following 
 letter was written at the time Judge Marshall was chosen a 
 Corresponding Member of the Massachusetts Historical So 
 ciety, August 29, 1809. In his letter of acceptance, dated 
 Richmond, September 20, 1809, Judge Marshall wrote to the 
 Corresponding Secretary of the Society as follows: 
 
 " On my return from a tour to our mountains I had the 
 pleasure of finding your letter of the ist inst., which I hasten 
 to acknowledge. Permit me, Sir, through you to assure the 
 Massachusetts Historical Society that I receive with just sen 
 sibility the honor they have been pleased to confer on me in 
 placing me among their corresponding members. Should I 
 be less useful than many of those with whom I am associated, 
 that circumstance, I entreat them to believe, will not be im- 
 putable to an improper estimate of the value of the institu 
 tion, or to a want of respect for those who compose it. For 
 the flattering terms in which you have been pleased to com 
 municate the vote of the Society I pray you to accept my 
 thanks. I shall not be in Washington till February. Per 
 haps some member of Congress may without inconvenience 
 find room in his baggage for the volume you mention." 
 
 In a second letter to Dr. Eliot, dated April 23, 1810, Judge 
 Marshall writes : " I had the pleasure of receiving from Mr. 
 Quincy your letter of the 3d of Novr, together with the two 
 volumes which accompanied it. Permit me to offer my 
 thanks for this attention, & to rely upon it as a pledge that 
 the additional trouble I am about to give you will not be irk 
 some. I could wish to place in my library as many of the 
 volumes of the Collections of the Society as are attainable 
 
i 4 8 THE POLITICAL AND ECONOMIC 
 
 without inconvenience, but while I solicit your aid in the ac 
 complishment of this wish I must accompany it with a re 
 quest that you will procure those volumes only, which either 
 by having gone through a second edition or from the numbers 
 of the first are now attainable with entire facility. I would 
 by no means impose on your goodness so far as to render any 
 research necessary. As I neither know the number of vol 
 umes which come within the scope of this request nor the 
 price of them, I cannot remit the precise sum which may be 
 necessary, but assure that on the first intimation from your 
 self this unavoidable omission shall be supplied." 
 
 The " compliment paid by your Athenaeum " refers to the 
 request of the Trustees of the Boston Athenaeum, made sev 
 eral years before, that Chief Justice Marshall would sit for 
 his portrait. At a meeting of the Trustees, December 8, 
 1829, it was " Voted, That the sum of two hundred dollars 
 be appropriated for a portrait of Chief Justice Marshall by 
 Mr. Harding, and that the Vice-President of this institution 
 be a committee to request Judge Marshall to sit for the same." 
 In his letter to Mr. Harding, the Vice-President, the Hon. 
 Francis C. Gray, writes : " We expect a first-rate picture and 
 hope you will not stint the size nor neglect the execution of 
 any account." The portrait was completed in season to be 
 exhibited for the first time in the Athenaeum s exhibition of 
 Paintings in the summer of 1830. It is the full-length por 
 trait which now hangs in the entrance hall of the Athenaeum. 
 A copy of this portrait was given to the Law School at Har 
 vard, in 1847, by Professor Greenleaf and others. 
 
 THE HON BLE MR. JUSTICE STORY, 
 Cambridge, Massachusetts. 
 
 RICHMOND, April 24th, 1833. 
 MY DEAR SIR : 
 
 I had the pleasure some days past of receiving your favor 
 of the loth, but deferred my answer till I could also acknowl 
 edge your very valuable present which it announced. The 
 Lucy & Abigail is now arrived, and has delivered the package 
 containing your Commentaries and Allison s Sermons, for 
 both of which I thank the donors. 
 
 As favors generally beget a disposition to make farther de 
 mands on the kindness which confers them, I have ventured 
 

 DOCTRINES OF JOHN MARSHALL 149 
 
 to impose on you the trouble of distributing some books among 
 your friends and neighbors to whom I wish to be civil, and 
 have sent a few copies of the Life of Washington for that 
 purpose. One you will perceive is for Mr. Webster and one 
 for Mr. Adams. 
 
 In looking over some old papers the other day to determine 
 how many of them were worthy of being committed to the 
 flames, I found a totally forgotten letter (you need not com 
 municate this) from the Historical Society of Massachusetts 
 (or Boston), announcing that I had been elected an honorary 
 member. To show my gratitude for this distinction, I ask 
 them to accept my book, a poor return indeed, but the 
 only one I can make. 
 
 You know what a compliment has been paid me by your 
 Athenaeum. I have been truly flattered by it, and hope the 
 society will receive my book, not surely as anything like an 
 equivalent, but as a testimonial of my grateful sense of the 
 favorable sentiment that society has manifested for me. The 
 widow s mite, you know, proved the heart more than the rich 
 gifts of the wealthy. 
 
 I wish you to present the copy intended for Mrs. Ledyard 
 in your very best manner. Tell her how infinitely I feel the 
 obligation she has conferred on me. I was extremely anxious 
 to obtain Allison s Sermons for the reasons I mentioned to 
 you, and you may assure Mrs. Ledyard that their value is 
 enhanced greatly by the hand which gives them. 
 
 In the receipt which I took for the freight Captain New- 
 comb promised to deliver the box to his owners I think he 
 calls them George Thresher & Co. or George Thorcher & 
 Co., Long Wharf. Though you New England men, all or 
 most of you, beat copperplate in your writing this captain 
 rather poses me. If I mistake his letters, you, however, prob 
 ably know his owners. 
 
 I am truly delighted that your Commentaries are published. 
 I shall read them eagerly myself, and wish most ardently that 
 they may be read by others to whom they would be still more 
 useful. The copy intended for the schools will do much good 
 where the teachers introduce it. I greatly fear that south 
 of the Potomack, where it is most wanted, it will be least 
 used. It is a Mahomedan rule, I understand, " never to dis 
 pute with the ignorant," and we of the truth faith in the 
 
150 THE POLITICAL AND ECONOMIC 
 
 South abjure the contamination of infidel political works. It 
 would give our orthodox nullifyer a fever to read the heresies 
 of your Comentaries. A whole school might be infected by 
 the atmosphere if a single copy should be placed on one of 
 the shelves of a bookcase. 
 
 By the way, since I have breathed the air of James River 
 I think favorably of Clay s bill. I hope, if it can be main 
 tained that our manufactures will still be protected by it. 
 Have you ever seen anything to equal the exhibition in Char 
 leston and in the far South generally? Those people pursue 
 a southern league steadily or they are insane. They have 
 caught at Clay s bill, if their conduct is at all intelligible, not 
 as a real accommodation, a real adjustment, a real relief from 
 actual or supposed oppression, but as an apology for avoiding 
 the crisis and deferring the decisive moment till the other 
 States of the South will unite with them. 
 
 With affectionate esteem I am 
 
 Your 
 
 J. MARSHALL. 
 
 THE HON BLE MR. JUSTICE STORY, 
 Cambridge, Massachusetts. 
 
 RICHMOND, June 3d, 1833. 
 MY DEAR SIR: 
 
 I am greatly obliged by your letter of the 24th of May. 
 Your conjecture that my enquiry related to Randolph s case 
 was well founded. My letter did not present the difficulty 
 because I did not then comprehend it myself. I wrote it on 
 the bench, just after seeing a paper which stated that a war 
 rant to apprehend him would be demanded. No copy of the 
 laws of Congress was in the courtroom, and the hour for 
 closing the mail was arrived. I wrote without looking at 
 the act. As I anticipated, the application was made on my re 
 turn, and I felt the difficulty of the case. The reason and 
 policy of apprehending in the States for trial in the District 
 or in a territory are obvious. The fact too that Mr. Watkins 
 had been arrested in Pensylvania for trial in Washington 
 seemed to be a decision, perhaps by a Judge of the United 
 States, in favor of issuing the warrant. Yet the language 
 of the 33d Sec. appeared to me to limit the power of arrest to 
 cases where the person was arrested for trial before a court 
 
DOCTRINES OF JOHN MARSHALL 151 
 
 which by the Judicial Act has cognizance of the offence. This 
 restraint upon the power is absurd, and could not, I believe, 
 have been imposed, had the Congress perceived its effect, but 
 it cannot be disregarded. 
 
 I was truely embarrassed, but at length determined not to 
 grant the warrant. 
 
 The application was accompanied with an able opinion of 
 the Attorney General in support of it. He found himself in 
 some measures on proceedings which have taken place in 
 some previous cases, in some measures on the fact that sev 
 eral courts have been constituted since the passage of the act 
 of 1789, and in some measures on the circumstance that all 
 the courts are now in the exercise of jurisdiction under the 
 act of 1802, not under the act of 1789. 
 
 These are serious difficulties, but Congress ought to re 
 move them. In the meantime they deserve the consideration 
 of all the Judges. 
 
 I rejoice to hear that the abridgement of your Commen 
 taries is coming before the public, and should be still more 
 rejoiced to learn that it was used in all our colleges and uni 
 versities. The first impressions made on the youthful mind 
 are of vast importance; and most unfortunately, they are in 
 the South all erroneous. Our young men generally speak 
 ing, grow up in the firm belief that liberty depends on con 
 struing our constitution into a league instead of a government ; 
 that it has nothing to fear from breaking these United States 
 into numerous petty republics. Nothing in their view is to 
 be feared but that bugbear, consolidation ; and every exer 
 cise of legitimate power is construed into a breach of the con 
 stitution. Your book, if read, will tend to remove these preju 
 dices. 
 
 Your affectionate friend. 
 
 J. MARSHALL. 
 
 THE HON BLE MR. JUSTICE STORY, 
 Cambridge, near Boston. 
 
 RICHMOND, Novr i6th, 1833. 
 MY DEAR SIR: 
 
 I thank you for your last letter. Though my thanks are 
 postponed they are not the less sincere. The difficulty sug 
 gested is somewhat changed in its aspect, but is not removed. 
 
152 THE POLITICAL AND ECONOMIC 
 
 The attachment was served in my absence, and an applica 
 tion is made to a State Judge for a writ of habeas corpus. 
 It is now under consideration, and will probably be awarded. 
 Whether the motion be granted or rejected, I expect the ques 
 tion to be brought before me, and shall if possible bring it be 
 fore the Supreme Court or suspend it till the Judges can be 
 consulted. 
 
 I have just received a letter from Mr. Ringold informing 
 me that he has moved his family out of the city and conse 
 quently cannot accomodate us next winter. What is to be 
 come of us? What arrangement can be made? Shall we go 
 to the place selected by our brother Johnson near the capitol, 
 or what other location shall we make? If you have held any 
 communication with our brother Thompson since his last and 
 greatest affliction, or can hold any with him, will you con 
 sult him and if possible determine on something? I will hold 
 myself in readiness to join you anywhere. If you fix on any 
 place, let me know it. If you do not then say where we shall 
 meet. 
 
 / The political world, at least our part of it, is surely moved 
 
 / topsy-turvy. What is to become of us and of our constitu 
 tion? Can the wise men of the East answer the question? 
 Those of the South perceive no difficulty. Allow a full rage 
 
 \ to state rights and state sovereignty, and, in their opinion, all 
 
 Vwill go well. 
 
 7 What think you of the late decision of our brother McClain 
 in Tennessee ? Does it accord exactly with his last opinion in 
 the Cherokee case? 
 Farewell. 
 
 With affectionate esteem, I am still & shall ever be 
 
 Yours truly. 
 J. MARSHALL. 
 
 THE HON BLE MR. JUSTICE STORY, 
 Cambridge, Massachusetts. 
 
 RICHMOND, Deer 3d, 1834. 
 MY DEAR SIR : 
 
 I am so accustomed to rely on you for aid when I need it 
 that you must not be surprised at the present application. I 
 trust however that it will not give you much trouble. 
 
DOCTRINES OF JOHN MARSHALL 153 
 
 You will perceive in the 2 v of the Life of Washington, 2d 
 ed., p. 307-8, an account of the defeat of Harden. It is 
 stated that the battle was fought on the St. Joseph. I have re 
 ceived a letter from a gentleman in Chilicothe which gives 
 probability to the opinion that it was really fought on Paint 
 Creek, a stream which empties into the Scioto not far from 
 Chilicothe. Will you have the goodness at your leisure to 
 make some enquiries of Mr. Sparks, and learn whether the 
 letter to General Washington giving an account of this 
 battle states it to have been fought on the St. Joseph 
 or on Paint Creek. You need not hurry yourself on this 
 subject. The information will be in full time when I meet 
 you in Washington, where I purpose to be as usual in Janu 
 ary. 
 
 I perceive you have been much employed in dispatching a 
 batch of pirates. I trust I may congratulate you on having 
 finished it to your own satisfaction. My circuit duties are 
 not arduous, and will terminate this week. 
 
 You will perceive that our House of Delegates has re- 
 elected their Jackson Speaker. This, however, is not ab 
 solutely a test of the strength of parties. The decisive bat 
 tle will be fought on the election of a Senator. Both parties 
 appear to be sanguine. The administration has undoubtedly a 
 majority in the Senate, the opposition in the House of Dele 
 gates. We are insane on the subject of the Bank. Its friends, 
 who are not numerous, dare not, a few excepted, to avow 
 themselves. You will perceive by the message of our Gov 
 ernor that he is a complete nullifier in the Georgia sense of 
 the term. 
 
 I conjecture from symptoms in the papers that Mr. Van 
 Buren gains strength in Virginia. This opinion is founded 
 on the fact that the papers in his interest did not for a long 
 time allude to him as their candidate. They emptied their 
 cup of malignant calumny on every other person who was 
 named as a candidate, hoping by the destruction of others to 
 sustain him. They now begin to bring him forward. This 
 shows that in their opinion he is stronger than he was. 
 
 I anticipate with much pleasure our meeting at Washing 
 ton. It is among the most painful of the emotions excited 
 by the prospect of leaving public life, an event which though 
 
154 THE POLITICAL AND ECONOMIC 
 
 not intended to be immediate cannot be very distant, that I 
 shall part forever from friends most dear to me. 
 I am, my dear Sir, with true and affectionate esteem, 
 
 Your, 
 J. MARSHALL. 
 
 The following three letters were written by John Marshall 
 to General Washington during the time when Marshall was 
 in Europe upon the " X Y Z " Mission. It is interesting to 
 observe the impression that the Europe of 1797 and 1798 
 made upon such a mind as that of Marshall. The text of 
 these letters, derived first from the transcripts among the 
 Sparks papers in the Library of Harvard University, has been 
 carefully compared with that of the original letters among 
 Washington papers in the Library of the Department of State 
 by Mr. S. M. Hamilton of that library. In " Washington s 
 Writings," Ford Edition, XIII, pp. 432-436, will be found, 
 under date of December 4, 1797, a letter from General Wash 
 ington in reply to the first of the three following communica 
 tions. 
 
 THE HAGUE, i5th Sept. 1797. 
 DEAR SIR 
 
 The flattering evidences I have receiv d 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 
 yet feel a deep interest in all that concerns a country to whose 
 service you have devoted so large a portion of your life, in 
 duce me to offer you such occasional communications as, while 
 in Europe I may be enabled to make, and induce a hope too 
 that the offer will not be deemed an unacceptable or unwel 
 come intrusion. 
 
 Until our arrival in Holland we saw only British and neu 
 tral vessels. This added to the blockade of the Dutch fleet 
 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 gen 
 eral orders to pursue a system calculated to conciliate Amer 
 ica. Whether this be occasion d by a sense of justice and 
 
DOCTRINES OF JOHN MARSHALL 155 
 
 the obligation 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. Tho the 
 face of the country still exhibits a degree of wealth and popu 
 lation perhaps unequalled in any other part of Europe, its de 
 cline is visible. The great city of Amsterdam is in a state 
 of blockade. More than two thirds of its shipping lie unem 
 ployed in port. Other seaports suffer tho not in so great a 
 degree. In the meantime the requisitions made upon them are 
 enormous. They have just completed the payment of 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 contri 
 butions in specifics ; and they pay feed and cloath an army esti 
 mated, as I am informed, at near three times its real num 
 ber. 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 national expenditures, by a popula 
 tion of less than 2,000,000. Nor, shou d 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. Not even peace can place Holland 
 in her former situation. Antwerp will draw from Amster 
 dam a large portion of that commerce which is the great source 
 of its wealth; for Antwerp possesses, in the existing state of 
 things, advantages which not even weight of capital can en 
 tirely surmount. The political divisions of this country and 
 its uncertainty concerning its future destiny must also have 
 their operation. Independent of the grand division between 
 those for and against the Stadtholder, between those who favor 
 an indivisible and those who favor a federal republic, there is 
 much contrariety of opinion concerning the essential princi 
 ples of that indivisible consolidated republic which the 
 influence of France imposes on the nation. A constitution 
 which I have not read, but which is stated to me to 
 have contain d all the great fundamentals of a representa 
 tive government, and which has been prepared with in 
 finite labor, and has experienc d an uncommon length of dis 
 cussion was rejected in the primary assemblies by a majority 
 
156 THE POLITICAL AND ECONOMIC 
 
 of nearly five to one of those who voted. The objections do 
 not accompany the decision, but they are said to be to the 
 duration of the constitution which was to remain five years 
 unaltered, to the division of the legislature into two chambers, 
 and to its power of definitive legislation, the substitute wish d 
 for, by its opponents, is a legislature with a single branch hav 
 ing power only to initiate laws which are to derive their force 
 from the sanction of the primary assemblies. I do not know 
 how they would organize their executive, nor is it material 
 how they would organize it. A constitution with such a legis 
 lature would live too short a time to make it worth the while 
 to examine the structure of its other parts. It is remarkable 
 that the very men who have rejected the form of government 
 propos d to them have reelected a greater majority of the 
 persons who prepared it and who will probably make from it 
 no essential departure. Those elected are now assembled in 
 convention at this place, but we know not in what manner 
 they are proceeding. It is also worthy of notice that more 
 than two thirds of those entitled to suffrage including per 
 haps more than four fifths of the property of the nation, and 
 who wish d, as I am told the adoption of the constitution with 
 held their votes on this very interesting question. Many were 
 restrained by an unwillingness to take the oath required be 
 fore a vote cou d be receiv d ; Many, disgusted with the pres 
 ent state of things, have come to the unwise determination of 
 revenging themselves on those whom they charge with having 
 occasion d it by taking no part whatever in the politics of their 
 country, and many seem to be indifferent to every considera 
 tion not immediately connected with their particular employ 
 ments. 
 
 The political opinions which have produc d the rejection of 
 the constitution, and which, as it wou d seem, can only be en- 
 tertain d by intemperate and ill inform d minds, unaccustonrd 
 to a union of the theory and practice of liberty, must be as 
 sociated with a general system which if brought into action 
 will produce the same excesses here which have been so justly 
 deplor d in France. The same material exists tho 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 minor 
 ity of the nation. On my remarking this to a very rich and 
 intelligent merchant of Amsterdam and observing that if one 
 
DOCTRINES OF JOHN MARSHALL 157 
 
 class of men withdrew itself from public duties and offices it 
 would immediately be succeeded by another which wou d ac 
 quire a degree of power and influence that might be exercis d 
 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 herself had expe 
 rienced. That france would continue to require great sup 
 plies from Holland and knew its situation too w r ell to per 
 mit it to become the prey of anarchy. That Holland was an 
 artificial country acquir d by preserving industry and which 
 cou d only be preserved by wealth and order. That confusion 
 and anarchy wou d banish a large portion of that wealth, wou d 
 dry up its sources and wou d entirely disable them from giving 
 France that pecuniary aid she so much needed. That under 
 this impression very many who, tho friends to the revolution 
 saw with infinite mortification f rench troops garrison the towns 
 of Holland, wou d now see this departure with equal regret. 
 Thus they willingly relinquished national independence for 
 individual safety. What a lesson to those who wou d admit 
 foreign influence into the United States ! 
 
 You have observ d the storm which has been long gather 
 ing in Paris. The thunderbolt has at length been launch d 
 at the heads of the leading members of the legislature, and 
 has, it is greatly to be fear d, involved in one common ruin 
 with them, the constitution and liberties of their country. 
 
 The inclos d papers will furnish some idea of a transaction 
 which may be very interesting to America as well as to France. 
 Complete and impartial details concerning it will not be easily 
 obtain d, as the press is no longer free. The journalists who 
 had ventur d to censure the proceedings of a majority of the 
 directory are seiz d, and against about forty of them a sen 
 tence of transportation is pronounced. The press is plac d 
 under the superintendence of a police appointed by and de 
 pendent on the executive. It is suppos d that all private let 
 ters have been seiz d for inspection. 
 
 From some Paris papers it appears, that on the first alarm 
 several members of the legislature attempted to assemble in 
 their proper halls which they found clos d and guarded by an 
 armed force. Sixty or seventy assembled at another place 
 and began to remonstrate against the violence offer d against 
 their body but fear soon dispersed them. To destroy the pos- 
 
158 THE POLITICAL AND ECONOMIC 
 
 sibility of a rallying point the municipal administrations of 
 Paris and the central administration of the Seine were im 
 mediately suspended and forbidden by an arrete of the di- 
 rectoire to assemble themselves together. Many of the ad 
 ministrators of the departments through France elected by the 
 people, had been previously removed and their places filled by 
 persons chosen by the directory. Moreau who commanded 
 the army of the Sambre and the Meuse by which he was de 
 servedly loved and who was consider d as attach d to the 
 fallen party was, as is reported, invited from his army to Paris 
 under the pretext of a personal consultation. We have not 
 heard of his arrival or of his fate. The command of his 
 army during his absence did not, we learn, devolve on the old 
 est officer but was given to Genl Hoche who also commands 
 the army of the in [mutilated] Carnot is at one time said to 
 have been kill d in defending himself from some soldiers who 
 pursued and attempted to take him, at another time he is said 
 to have affected his escape. The fragment of the legislature 
 convok d by the directory at L Odeon and L ecole de sarite, 
 hasten d to repeal the law for organizing the national guards, 
 and authoriz d the directory to introduce into Paris as many 
 troops as should be judged necessary. The same day the lib 
 erty of the press was abolish d by a line, property taken away 
 by another and personal security destroy d by a sentence of 
 transportation against men unheard and untried. All this is 
 stiled the triumph of liberty and of the constitution. 
 
 To give a satisfactory statement of the origin and progress 
 of the contest between the executive and legislative depart 
 ments would require more time than could devoted to the 
 subject, did I even possess the requisite information, and to 
 you, Sir, it would be unnecessary because I have no doubt of 
 your having receiv d it through other channels. I shall briefly 
 observe that the controversy has embrac d a variety of inter 
 esting subjects. Since the election of the new third, there 
 were found in both branches of the legislature a majority 
 in favor of moderate measures, and, apparently, wishing sin 
 cerely for peace. They have manifested a disposition which 
 threaten d a condemnation of the conduct of the directory to 
 wards America, a scrutiny into the transactions of Italy, par 
 ticularly those respecting Venice and Genoa, an inquiry into 
 the disposition of public money and such a regular arrange- 
 
DOCTRINES OF JOHN MARSHALL 159 
 
 ment of the finances as would prevent in future those dilapi 
 dations which are suspected to have grown out of their dis 
 order. 
 
 They have sought too by their laws to ameliorate the situa 
 tion of those whom terror had driven out of France, and of 
 those priests who had committed no offense. Carnot and 
 Bethelemy two of the directory were with the legislature. 
 
 The cry of conspiracy to reestablish royalism was im 
 mediately rais d against them. An envoy was despatched to 
 the army of Italy to sound its disposition. It was represented 
 that the legislature was hostile to the armies, that it witheld 
 their pay and subsistence, that by its opposition to the direc 
 tory it encouraged Austria and Britain to reject the terms of 
 peace which were ofrer d by France, and which but for that 
 opposition would have been accepted, and finally that it had 
 engag d in a conspiracy for the destruction of the constitu 
 tion and the republic and for the restoration of royalty. At a 
 feast given to the armies of Italy to commemorate their fel 
 low soldiers who had fallen in that country the generals ad- 
 dress d to them their complaints plainly spoke of marching to 
 Paris to support the directory against the Council and re- 
 ceiv d from them addresses manifesting the willingness of the 
 soldiers to follow them. The armies also addressed the di 
 rectory and each other, and addresses were dispatched to dif 
 ferent departments. The directory answered them by the 
 strongest criminations of the legislature. Similar proceed 
 ings were had in the army of the interior commanded by Genl 
 Hoche. Detachments were mov d within the limits prohibited 
 by the constitution, some of which declared they were march 
 ing to Paris to bring the legislature to reason. Alarmed by 
 those movements the council of five hundred call d on the direc 
 tory for an account of them. The movement of the troops 
 within the constitutional circle was attributed to accident and 
 the discontents of the army to the falts committed by the leg 
 islature who were plainly criminated as conspirators against 
 the army and the republic. The message was taken up by 
 Troncon in the council of ancients and by Thibideau in the 
 council of five hundred. I hope you have seen their speeches. 
 They are able, and seem to me to have entirely exculpated the 
 legislature. In the meantime the directory employ d itself 
 in the removal of the administrators of many of the depart- 
 
160 THE POLITICAL AND ECONOMIC 
 
 ments and cantons and replacing those whom the people had 
 elected by others in whom it could confide, and in the removal 
 generally of such officers both civil and military as could be 
 trusted to make room for others on whom it could rely. The 
 legislature on its part, passed several laws to enforce the con 
 stitutional restrictions on the armies and endeavor d to or 
 ganize the national guards. On this latter subject especially 
 Pichegru great and virtuous I believe in the cabinet as in the 
 field, was indefatigable. We understand that the day before 
 the law for their organization would have been carried into 
 execution the decisive blow was struck. 
 
 To support the general charge of a conspiracy in favor of 
 royalty I know of no particular facts alleg d against the ar 
 rested members except Pichegru and two or three others. An 
 abridgment of the paper constituting the whole charge against 
 Pichegru will be found in the inclos d supplement. I have 
 seen the paper at full length. The story at large is still more 
 improbable than its abridgment because Pichegru is made in 
 the first moment of conversation to unbosom himself entirely 
 to a perfect stranger who had only told him that he came from 
 the Prince of Conde and could not exhibit a single line or 
 testimonial of any sort to prove that he had ever seen the 
 Prince or that he was not a spy employ d by some of the 
 enemies of the General. 
 
 This story is repelled by Pichegru s character which has 
 never been defiled. Great as were the means he possess d of 
 personal aggrandizement he returned clean handed from the 
 army without adding a shilling to his private fortune. It is 
 repel d by his resigning the supreme command, by his num 
 erous victories subsequent to the alleged treason, by its own 
 extreme absurdity and by the fear which his accusers show 
 of bringing him to trial according to the constitution even be 
 fore a tribunal they can influence and overawe, or of even 
 permitting him before that prostrate body which is still term d 
 the legislature and which in defiance of the constitution has 
 pronounc d judgment on him. Yet this improbable and un 
 supported tale seems to be received as an established truth by 
 those who, the day before his fall bow d to him as an idol. 
 I am mortified as a man to learn that even his old army which 
 conquered under him, which adored him, which partook of 
 his fame and had heretofore not join d their brethren in ac- 
 
DOCTRINES OF JOHN MARSHALL 161 
 
 cusing the legislature, now unite in bestowing on him the 
 heaviest execrations and do not hesitate to pronounce him a 
 traitor of the deepest dye. 
 
 Whether this conspiracy be real or not, the wounds inflicted 
 on the constitution by the three directors seem to me to be 
 mortal. In opposition to the express regulations of the con 
 stitution the armies have deliberated, the results of their de 
 liberations addressed to the directory has been favorably re 
 ceived, and the legislature since the revolution has super- 
 added its thanks. Troops have been march d within those 
 limits which by the constitution they are forbidden to enter 
 but on the request of the legislature. 
 
 The directory is forbidden to arrest a member of the legis 
 lature unless in the very commission of a criminal act and 
 then he can only be tried by the high court, on which oc 
 casion forms calculated to protect his person from violence or 
 the prejudice of the moment are carefully prescribed. Yet it 
 has seiz d by a military force about fifty leading members not 
 taken in a criminal act and has not pursued a single step 
 mark d out by the Constitution. 
 
 The councils can inflict no penalty on their own members 
 other than reprimand, arrest for eight and imprisonment for 
 three days. Yet they have banished to such place as the di 
 rectory shall choose a large portion of their body without the 
 poor formality of hearing a defence. 
 
 The legislature shall not exercise any judiciary power or 
 pass any retrospective law. Yet it has pronounc d this heavy 
 judgment on others as well as its own members and has taken 
 from individuals property which the law had vested in them. 
 
 The members of the directory are personally secur d by the 
 same rules with those of the legislature. Yet three directors 
 have deprived two o f their places, the legislature has thus ban 
 ished [them] without a hearing and has proceeded to fill up 
 the alleg d vacancies. Merelin late minister of justice and 
 Francois de Neufchatel have been elected. 
 
 The constitution forbids the house of any man to be en- 
 ter d in the night. The orders of the constituted authorities 
 can only be executed in the day. Yet many of the members 
 were seized in their beds. 
 
 Indeed Sir the constitution has been violated in so many 
 instances that it would require a pamphlet to detail them. The 
 
1 62 THE POLITICAL AND ECONOMIC 
 
 detail would be unnecessary for the great principle seems to 
 be introduc d that the government is to be administer d ac 
 cording to the will of the armies and not according to the will 
 of the nation. 
 
 Necessity, the never to be worn out apology for violence, is 
 alleged but could that necessity go further than to secure 
 the persons of the conspirators ? Did it extend to the banish 
 ment of the printers to the slavery of the press? If such a 
 necessity did exist it was created by the disposition of the 
 people at large, and it is a truth which requires no demonstra 
 tion that if a republican form of government cannot be ad 
 ministered by the general will, it cannot be administered against 
 that will by an army. 
 
 After all, the result may not be what is apprehended. 
 France possesses such enormous power, such a vast popula 
 tion that she may possibly spare another million and preserve 
 or reacquire her liberty. Or, the form of the Government be 
 ing preserv d, the independence of the legislature may be 
 gradually recovered. 
 
 With their form of government or revolutions we have 
 certainly no right to intermeddle, but my regrets at the pres 
 ent state of things are increased by an apprehension that the 
 rights of our country will not be deemed so sacred under the 
 existing system, as they would have been had the legislature 
 preserved its legitimate authority. 
 
 Genl Pickney (with whom I cannot but be very well pleased) 
 [and I] have waited impatiently for Mr Gerry and shall wait 
 until Monday the i8th inst. On that day we set sail for 
 Paris. 
 
 The negotiations with Austria and Britain are still pend 
 ing and are of very uncertain issue. 
 
 This letter has extended itself to an unexpected length. I 
 have fatigued you, Sir and will only add that I remain 
 with sincere and respectful attachment 
 
 Your Obedt Servt 
 
 J. MARSHALL. 
 
 I just now learn that fifteen hundred persons have been 
 arrested at Lyons. That resistance is made at Avignon and 
 that Massina is marching to quell it. 
 
DOCTRINES OF JOHN MARSHALL 163 
 
 PARIS, October 24th, 1797. 
 DEAR SIR 
 
 I did myself the honor of addressing to you from the Hague 
 by Capt Izzard, a very long letter which I hope you have re- 
 ceiv d. The offer therein made of occasionally communicating 
 to my observations of the great and interesting events of eu- 
 rope was not even entitled to the small value which in my own 
 mind I had bestowed upon it. Causes which I am persuaded 
 you have anticipated, forbid me to allow myself that free range 
 of thought and expression which could alone apologize for the 
 intrusive character my letters bear. Having however offer d 
 what I cannot furnish, I go on to substitute something else per 
 haps not worth receiving. 
 
 You have heard it said in the United States that the agricul 
 ture of France has in the course of the present war been consid 
 erably improved. On this subject I am persuaded there has 
 been no exaggeration. In that part of the country through 
 which I have passed the evidences of plenty abound. The 
 whole earth appears to be in cultivation and the harvests of 
 the present year appear to be as productive as the fields which 
 yield them are extensive. I am inform d that every part of the 
 country exhibits the same aspect. If this be a fact, there will 
 probably remain, notwithstanding the demands of the armies, a 
 surplus of provisions. Manufactures have declined in the 
 same ratio that the cultivation of the soil has increas d. War 
 has been made upon the great manufacturing towns and they 
 are in a considerable degree destroy d. With manufactures 
 France does not supply herself fully from her internal re 
 sources. Those of Britain flow in upon her notwithstanding 
 the most severe prohibitory laws. The port of Rotterdam is 
 purposely left open by the English and their goods are im 
 ported by the Dutch under Prussian and other neutral colors. 
 They are smuggl d in great quantities into France. Peace then 
 will find this nation entirely competent to the full supply of 
 her colonies with provisions and needing manufactures to be 
 imported for her own consumption. This state of things will 
 probably change; but it is unquestionably the state of things 
 which will exist at, and for some time after, the termination of 
 the present war. France can take from America tobacco and 
 raw cotton, she can supply us with wines, brandies, and silks. 
 
1 64 THE POLITICAL AND ECONOMIC 
 
 The papers which I transmitted to you contain d the evi 
 dence on which were founded the transactions of the i8th 
 fructidor or 4th of September. Since then a letter has been 
 published bearing the signature of Gen Moreau and produced 
 as an unequivocal testimonial of the treason alleg d to have 
 existed. You will have seen the letter and have made upon it 
 your own comments, but you will be astonished to hear that 
 perhaps a majority of the people do not believe that Moreau 
 ever wrote it. 
 
 The existing political state of France is connected with 
 certain internal and powerfully operating causes by which it 
 has been and will continued to be greatly influenc d. Not the 
 least of these is the tenure by which property is held. 
 
 In the course of the revolution it is believ d that more than 
 half of the land of France has become national. Of this a very 
 considerable proportion has been sold at a low rate. It is true 
 that much of this property formerly belong d to the church, but 
 it is also true that much of it belong d to those who have fallen 
 under the Guillotine or have been termed emigrants. Among 
 the emigrants are many whose attachment to their country 
 has never been shaken ; and what is remarkable, among them 
 are many who were never out of France. The law upon this 
 subject is worthy of attention. Any two persons no matter 
 what their reputation, may, to some authority, I believed the 
 municipality of the district, write and subscribe against any 
 person whatever a charge, that such person is an emigrant, on 
 receipt of which the person so charged is without further in 
 vestigation inscribed on the list of emigrants. If the person 
 so inscribed be afterwards apprehended while his name re 
 mains on the list ; the trial, as I understand, is, not of the fact 
 of emigration, but of the identity of the person, and if this 
 identity be established, he is instantly fusilleered. This law 
 is either rigidly executed or permitted to be relax d, as the 
 occasion or the temper of the times may direct. 
 
 During intervals of humanity some disposition has been 
 manifested to permit the return of those who have never 
 offended, who have been banished by a terror which the gov 
 ernment itself has reprobated, and to permit in cases of ar- 
 restation, an investigation of the fact of emigration as well as 
 of the identity of the person accused. 
 
 There is too a great deal of property which has been sold as 
 
DOCTRINES OF JOHN MARSHALL 165 
 
 national but which in truth was never so, and which may be 
 reclaimed by the original proprietors. 
 
 In this state of things the acquirers of national property are 
 of course extremely suspicious. They form a vast proportion 
 of the population of France. They are not only important in 
 consequence of their numbers, but in consequence of their 
 vigor, their activity and that unity of interest which produces a 
 unity of effort among them. The armies too have been 
 promised a milliard. This promise rests upon the national 
 property for its performance. The effect of these circum 
 stances cannot escape your observation. Classes of citizens 
 are to be disfranchis d against the next elections. ^ 
 
 Our ministers have not yet, nor do they seem to think it 
 certain that they will be, receiv d. Indeed they make arrange 
 ments which denote an expectation of returning to America im 
 mediately. 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 crimi 
 nations equally absurd and untrue, are some unprincipled 
 apostates who were born in America. These sea rovers by a 
 variety of means seem to have acquir d 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. At present it seems to me to be radically hostile 
 to our country. I coud wish to form a contrary opinion but 
 to do so I must shut my eyes on every object which presente 
 itself to them, and fabricate in my own mind non existing 
 things, to be substituted for realities, and to form the basis 
 of my creed. Might I Be permitted to hazard an opinion it 
 would be that the Atlantic only can save us, and that no con 
 sideration will 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. 
 
 The negotiations with the Emperor are said not to have 
 been absolutely broken off. Yesterday it was said that peace 
 with him was certain. Several couriers have arriv d lately 
 
166 THE POLITICAL AND ECONOMIC 
 
 from Bonaparte and the national debt rose yesterday from 
 seven to ten livres in the hundred. Whether this is founded 
 on a real expectation of peace with Austria or is the mere work 
 of stock jobbers is not for me to decide. We are told that 
 Mantua is no longer the obstacle of peace that it is surrendered 
 by the Emperor and that the contest now is for Istria and 
 Dalmatia. 
 October 27th.- 
 
 The definitive peace is made with the Emperor. You will 
 have seen the conditions. Venice has experienced the fate of 
 Poland England is threatened with an invasion. 
 
 PARIS, march 8th 1798 
 DEAR SIR 
 
 Before this reaches you it will be known universally in 
 America, that scarcely a hope remains of accommodating on 
 principles consistent with justice, or even with the indepen 
 dence of our country, the differences subsisting between France 
 and the United States. Our ministers are not yet, and it is 
 known to all that they will not be recogniz d without a pre 
 vious stipulation on their part, that they will accede to the 
 demands of France. It is as well known that those demands 
 are for money to be used in the prosecution of the present 
 war. It was, some little time past expected, that, convinc d 
 of the impracticability of effecting the objects of their mission, 
 our ministers were about to demand their passports and to 
 return to the United States, but this determination if ever 
 made is, I am persuaded, suspended if not entirely relinquish d. 
 The report has been that so soon as it shall be known that 
 they will not add a loan to the mass of American property al 
 ready in the hands of this government they will be order d out 
 of France and a nominal as well as actual war will be com- 
 menc d against the United States. My opinion has always 
 been that this depends on the state of the war with England. 
 To that object the public attention is very much turn d, and 
 it is perhaps justly believed that on its issue is staked the inde 
 pendence of Europe and America. The preparations for an 
 invasion are immense. A numerous and veteran army lines 
 the coast, and it is said confidently that if the landing of 50,000 
 men can be effected, no force in England will be able to resist 
 them. The often repeated tale that the war is made not against 
 
DOCTRINES OF JOHN MARSHALL 167 
 
 the people but the government, maintains, in spite of experience 
 some portion of its credit, and it is believ d here that a formi 
 dable and organiz d party exists in Britain ready, so soon as a 
 landing shall be effected, to rise and demand a reform. It is 
 supposed that England revolutioniz d under the protection of a 
 french army will be precisely in the situation of the batavian 
 and Cisalpine Republics and that its wealth, its commerce, and 
 its fleets will be at the disposition of this government. In the 
 meantime this expedition is not without its hazards. An 
 army which arriving safe would sink England may itself be 
 encountered and sunk in the channel. The effect of such a 
 disaster on a nation already tir d of the war and groaning 
 under the pressure of an enormous taxation, which might dis 
 cern in it the seeds of another coalition, and which perhaps may 
 not be universally attach d to existing arrangements, might 
 be extremely serious to those who hold the reins of govern 
 ment. 
 
 It is therefore believed by many who do not want intelligence 
 that these formidable military preparations cover and favor 
 secret negotiations for peace. It is rumored (but this is mere 
 rumor) that propositions have been made to England to cede 
 to her the possessions of Portugal in America, in consideration 
 of her restoring the conquests she has made on France Spain 
 and Holland and of her consent that Portugal in Europe shall 
 be annexed to the Spanish monarchy. This report is derived 
 from no source in any degree to be relied on, and is supported 
 by no circumstance rendering it in any degree probable other 
 than the existing disposition for partitioning and disposing of 
 empires. I am however persuaded that some secret negotia 
 tion with England is now on the tapis. I know almost certainly 
 that a person high in the confidence of this government, who is 
 frequently employed in unofficial negotiation has passed over 
 into that island. We can only conjecture his objects. 
 
 You probably know that the affairs of Rastadt are sub 
 stantially decided. The Emperor and the King of Prussia 
 have declared themselves in favor of ceding to France the 
 whole territory on the left of the rhine on the principle of 
 compensation in the interior of Germany. This would seem 
 to me to take from England the hope of once more arming 
 Austria and Prussia in her favor, for certainly had those 
 powers contemplated such an event they would not have effected 
 
1 68 THE POLITICAL AND ECONOMIC 
 
 the pacification of the empire. This circumstance will probably 
 influence the secret negotiations with England. It will probably 
 too very much influence the affairs of Swisserland. The de 
 termination of France to revolutionize the helvetic body has 
 been long known. In the pais de vaud belonging to the Can 
 ton of Berne this revolution has commenced and is completely 
 effected under the protection and guidance of a french army 
 for which that little country has already paid about 800,000 
 livres Swiss. France has insisted on extending the revolu 
 tion throughout Swisserland. The existing governments in 
 some of the cantons and especially in Bern declare their willing 
 ness to reorganize their constitution on the base of an equality 
 of rights and a free representation, but they protest against 
 foreign interposition and against a revolutionary intermediate 
 government. In support of this resolution they have collected 
 all their force and most of the cantons which have already 
 changed their form of government have furnished their con 
 tingents. The mass of the people in Bern are firmly united 
 and seem to join the government in saying that they will to the 
 last man bury themselves under the ruins of the country rather 
 than submit to the intermeddling of the foreigners in the for 
 mation of their constitutions. Such is the present truly inter 
 esting state of Swisserland. A powerful military force is 
 advancing upon them and at the same time it is said that the 
 negotiations are to be opened. The terms offered however are 
 supposed to be such as if accepted will place that country in 
 the same situation as if conqured. A revolutionary govern 
 ment is insisted on. 
 
 The Swiss have observed an exact neutrality throughout the 
 late war on the continent and have ever since the peace sought 
 to preserve the forbearance of France by concessions not per 
 fectly compatible with the rights of an independent nation. 
 
 On the side of Italy it is believ d that materials are pre 
 paring to revolutionize Sardinia and Naples. 
 
 Some jealosies exist with respect to Spain. Augereau has 
 been ordered some time since to Perpignan a position from 
 which he may with advantage overawe that monarchy, invade 
 Portugal or preserve order in the south during the ensuing 
 elections. It is the common opinion that shoud the elections in 
 any respect disappoint the wishes of the directory it will be on 
 the side of Jacobinism. The existing government appears to 
 
DOCTRINES OF JOHN MARSHALL 169 
 
 me to need only money to enable it to effect all its objects. A 
 numerous brave and well disciplined army seems to be devoted 
 to it. The most military and the most powerful nation on 
 earth is entirely at its disposal. Spain Italy and Holland with 
 the Hanseatic towns obey its mandates. Yet there is a diffi 
 culty in procuring funds to work this vast machine. Credit 
 being annihilated the actual impositions of the year must equal 
 the disbursements. The consequence is that notwithstanding 
 the enormous contributions made by foreign nations France is 
 overwhelmed with taxes. The proprietor complains that his 
 estate yields him nothing. Real property pays in taxes nearly 
 a third of its produce and is greatly reduc d in its price. The 
 patriotic gifts for the invasion of Ehgland to which men have 
 been stimulated by all possible means have not exceeded by the 
 highest calculation 100,000 livres. This is the amount stated 
 by a person who charges the officers of the treasury with pec 
 ulation. The treasury admits 65,000 livres. It is supposed 
 that recourse will be had to a forc d loan and that the neigh 
 bors of the republic will be required to contribute still further 
 to its wants. A very heavy beginning has been made with 
 Rome. 
 March loth. 
 
 The papers announce that the troops of France and Swisser- 
 land have had some severe encounters in which those of the 
 latter have been worsted and the French entered Fribourg 
 and Soluere. Report (which as yet wants confirmation and 
 indeed is disbelieved) also says that Berne has submitted. 
 
 LETTER TO GEORGE WASHINGTON 
 
 RICHMOND, July nth. 1796. 
 SIR : 
 
 I will not attempt to express those sensations, which your 
 letter of the 8th instant has increased. Was it possible for me 
 in the present crisis of my affairs to leave the United States, 
 such is my conviction of the importance of that duty, which you 
 would confide to me, and (pardon me if I add) of the fidelity 
 with which I should attempt to perform it, that I would cer 
 tainly forego any consideration not decisive with respect to 
 future fortunes, and would surmount that just diffidence I 
 have ever entertained of myself, to make an effort to convey 
 
1 70 THE POLITICAL AND ECONOMIC 
 
 truly and faithfully to the government of France those senti 
 ments, which I have ever believed to be entertained by that of 
 the United States. 
 
 I have forwarded your letter to Mr. Pinckney. The recall 
 of our minister at Paris has been conjectured, while its prob 
 able necessity has been regretted by those, who love more than 
 all others our own country. I will certainly do myself the 
 honor of waiting on you at Mount Vernon. 
 
 With every sentiment of respect and attachment, 
 
 I am, &c. 
 
 J. MARSHALL. 
 
 The above letter is in reply to the following letter from 
 Washington, which is labelled " Private," and which is printed 
 in "Washington s Writings," by Jared Sparks, Vol. XI, 
 P- 
 
 MOUNT VERNON, 8 July, 1796. 
 DEAR SIR, 
 
 In confidence I inform you, that it has become indispensably 
 necessary to recall our minister at Paris, and to send one in his 
 place, who will explain faithfully the views of this govern 
 ment, and ascertain those of France. 
 
 Nothing would be more pleasing to me, than that you should 
 be this organ, if it were only for a temporary absence of a few 
 months ; but, it being feared, that even this could not be made 
 to comport with your present pursuits, I have, in order that as 
 little delay as possible may be incurred, put the enclosed letter 
 under cover, to be forwarded to its address, if you decline the 
 present offer, or to be returned to me if you accept it. Your 
 own correct knowledge of circumstances renders details un 
 necessary. I shall only add, therefore, that I am, dear Sir, &c. 
 
 GEORGE WASHINGTON. 
 
 PHILADELPHIA, Jany i6th, 1800. 
 SIR 
 
 Accept my sincere thanks for a copy of the oration delivered 
 at New Rochelle on the ist of Jany. which has reached me 
 today. 
 
 I have read it with that melancholy pleasure which is in 
 spired by well merited & well executed eulogies on those whose 
 
DOCTRINES OF JOHN MARSHALL 171 
 
 deaths we greatly lament, & whose memory is most dear to us. 
 To the friends of the departed patriot whose talents & vir 
 tues you have valiantly & so justly celebrated, & to the friends 
 of the American character, the deep & universal grief which 
 has been every where manifested, & the impressive orations 
 which have flowed from that grief, constitute some consolation 
 for the irreparable loss our country has sustained. 
 With very much respect 
 
 I am Sir your obedt. Servt. 
 
 J. MARSH ALL. 5 9a 
 
 Marshall s conception of the judicial character placed the 
 office where it should be, on the highest plane of morals, and 
 served in tempestuous times to maintain the dignity and power 
 of his court in the estimation of all fair-minded lawyers. 
 
 Mr. Jay, the first Chief Justice of the United States, on his 
 first circuit had declined the numerous invitations of his friends 
 to reside with them, saying, in delicate terms to one of his 
 friends : " As a man, and your friend, I should be happy in 
 accepting it, but as a judge I have my doubts they will occur 
 to you without details. " 
 
 In 1834 Marshall received an invitation to attend a public 
 dinner given at Petersburg, Virginia, in honor of Mr. Leigh, 
 which he declined in the following letter, addressed to the com 
 mittee : 
 
 RICHMOND, October 6, 1834. 
 GENTLEMEN 
 
 I have received your polite and flattering invitation to the 
 dinner to be given to Mr. Leigh by his friends in Petersburg, on 
 the 1 5th of this month. United, as I have long been with that 
 gentleman, by ties of personal friendship, and feeling as I do 
 the highest respect for his talents and character, I should make 
 a point of manifesting these sentiments by accepting your kind 
 invitation, were I not restrained by considerations which have 
 uniformly influenced my conduct; and which I do not think 
 
 59 The above letter was found in " Homes of American Statesmen, with 
 Anecdotal, Personal, and Descriptive Sketches by Various Authors. Illus 
 trated with engravings on wood, from drawings by Dopier and Daguerre 
 otypes : and Fac-similes of Autograph Letters." New York, Alfred W. 
 Upham, 1860, pp. 274-276. No information to show to whom this letter 
 was sent can be found. 
 
172 THE POLITICAL AND ECONOMIC 
 
 myself at liberty to disregard. I have always believed, and 
 acted on the opinion, that the delicacy belonging to my peculiar 
 official situation, ought to prevent my engaging in the political 
 conflicts of the day. I could not yield to the inclination I feel 
 to show my grateful sense of the partial kindness expressed in 
 your letter of invitation, without affording at least the appear 
 ance of departing from a rule which has been prescribed by a 
 conviction of its propriety. I am therefore compelled to deny 
 myself the pleasure of participating in the festivities of the 
 occasion ; wishing you, gentlemen, and those you represent, 
 all the happiness you expect, 
 
 I remain your obliged and obedient servant, 
 
 J. MARSHALL. 60 
 
 To MESSRS. GEORGE W. HARRIS AND OTHERS. 
 
 LETTER 01 FROM JOHN MARSHALL TO 
 GEORGE WASHINGTON 
 
 RICHMOND, May ist, 99 
 DEAR SIR 
 
 You may possibly have seen a paragraph in a late publica 
 tion, stating that several important offices in the gift of the 
 executive, & among others that of secretary of state, had been 
 attainable by me. Few of the unpleasant occurrences produced 
 by my declaration as a candidate for congress (& they have 
 been very abundant) have given me more real chagrin than 
 this. To make a parade of proffered offices is a vanity which 
 I trust I do not possess, but to boast of the never in my power 
 would argue a littleness of mind at which I ought to blush. 
 
 I know not how the author may have acquired his informa 
 tion, but I beg leave to assure you that he never received it 
 directly nor indirectly from me. I had no previous knowledge 
 that such a publication was designed, or I would certainly have 
 suppressed so much of it as relates to this subject. 
 
 The writer was unquestionably actuated by a wish to serve 
 me & by resentment at the various malignant calumnies that 
 have meen so profusely bestowed on me. One of these was 
 that I only wished a seat in Congress for the purpose of ob- 
 
 60 The above letter is printed in the " Niles Register," 1834, and in the 
 American Law Review, Vol. XXII, p. 711. 
 
 61 On the other side of this letter is written in Washington s handwrit 
 ing, " From General Marshall, ist May, 1799." 
 
DOCTRINES OF JOHN MARSHALL 173 
 
 taining some office which my devotion to the administration 
 might procure. To repel this was obviously the motive of 
 the indiscreet publication I so much regret. 
 
 A wish to rescue myself in your opinion from the imputa 
 tion of an idle vanity which forms if I know myself, no part 
 of my character, will I trust apologize for the trouble this ex 
 planation may give you. 
 
 Messrs Goode & Gray who are the successors of Messrs 
 Clarborne & Harrison are both Federalists. Mr. Hancock 
 who opposed Mr. Tris will, to our general disappointment not 
 succeed. At least such is our present information. Should 
 Haywood or Preston be elected the Virginia delegation will 
 stand ten in opposition to the government s nine in support 
 of it. 
 
 Parties, I hear will not be so nearly balanced in our state 
 legislature. With the most respectful attachment 
 I remain Sir, your Obedt Servt 
 
 J. MARSHALL. 
 
 LETTER FROM JOHN MARSHALL TO GEORGE WASHINGTON 
 
 RICHMOND, May i6th 1799. 
 DEAR SIR 
 
 Neither Col. Carrington nor Col. Heth are now in town. So 
 soon as they arrive your letter of the I2th inst. with its inclo- 
 sures, will be communicated to them. I wish it may be in our 
 power to furnish any useful information on the subjects in 
 quired into. 
 
 Returns of all the elections have been received. The failure 
 of Col. Hancock & of Major Haywood was unexpected & has 
 [not clear] us to sight in the legislature of the Union. 
 
 In the State elections very considerable changes have been 
 made. There are from fifty to sixty new members. Unfor 
 tunately, the strength of parties is not materially varied. The 
 opposition maintains its majority in the house of Delegates. 
 The consequence must be an anti federalist Senator & Gov 
 ernor. In addition to this the baneful influence of a legisla 
 ture hostile perhaps to the Union or if not so, to all its 
 measures will yet be kept up. 
 
 If it be true that France has declared war against Austria, it 
 will be now apparent that it would have been wise to have at- 
 
174 THE POLITICAL AND ECONOMIC 
 
 tempted the relief of Ehrenbreitstein & the preservation of 
 Naples & Sardinia. Even this instructive lesson will probably 
 make no impression on the nations of Europe or the people of 
 America. 
 
 With the utmost respect & attachment, 
 I am Sir, your Obed t Serv t, 
 
 J. MARSHALL. 
 
 LETTER FROM JOHN MARSHALL TO GEORGE WASHINGTON 
 
 RICHMOND, June i2th 99. 
 DEAR SIR 
 
 Your letter of the 6th inst. which came by the last mail was 
 communicated to Col. Carrington & would have been shown 
 also to Col. Heth had he been within our immediate reach. 
 
 Col. Croppin is a man of fair character correct politics & 
 unquestionable courage. No doubt can be entertained of his 
 fitness for the command of a regiment nor should I have hesi 
 tated to transmit him immediately your letter, but for one con 
 sideration produced by his former military .station. He was 
 in our late army a Lieut. Col. & he performed the duties of that 
 office with reputation. It is probable that he may feel wounded 
 at being offered the same grade under others whom he thus 
 commanded & who are perhaps in nothing his superiors. It is 
 presumed that officers in the actual army will command those 
 of the same grade in the eventual army. If you are correct 
 in this then Colonels Bentley & Parker who were bothe sub 
 alterns when Col. Croppin was a field officer, & who are not 
 supposed to have manifested any superiority over him, will 
 now take rank of him. The former relative rank of offibers 
 ought certainly not to be the rule which should positively decide 
 their present rank. But among gentlemen in other respects 
 equal it is difficult entirely to lose sight of it. It is suggested 
 by Col. Carrington that if the eventful army shall be called into 
 actual service Brigadiers General will necessarily be appointed 
 from Virginia & he has supposed that Genl. Clarke & Col. 
 Croppin, to whom I will take the liberty of adding Genl Posey, 
 would be proper persons to contemplate for the station. 
 
 For this single reason Col. Carrington & myself deemed it 
 advisable to detain your letter to Col. Croppin until your 
 further directions can be reviewed. Should you still incline 
 
DOCTRINES OF JOHN MARSHALL 175 
 
 to transmit it to him, we trust the delay will produce no incon 
 venience. 
 
 Col. [name not clear] who resides in the county of Bedford, 
 was in the late war brigade Major to Genl Muhlenberg. He is 
 a man of considerable energy of character. His activity & 
 courage recommend him as a military man, but those who know 
 him best suppose him better fitted for the command of a bat 
 talion than of a regiment. It is probable that he would accept 
 a majority under a man he could respect, sufficiently respect to 
 serve under without mortification. Col. James Breckenbridge 
 of [not clear] although never heretofore in service is believed 
 to possess many excellent qualities as a soldier, to which he 
 adds a weight of character which would I think induce Col. 
 Munnis to be content with a majority of his regiment. To the 
 appointment of Col. Breckenbridge there would be this objec 
 tion. It would take him out of the State Legislature where he 
 is a valuable & influential member. 
 
 Genl Porterfield of Augusta is in every respect proper for 
 the command of a regiment. 
 
 Genl. Blackwell of Fauquier was a Captain in the late army 
 & in my opinion, one of our most valuable officers. He is a 
 cool steady sensible & brave man whose conduct is always 
 correct & who would in my opinion command a regiment with 
 reputation to himself & advantage to his country. 
 
 Col Swearingen of Berkley was also a captain in the late 
 army & maintains a very high reputation. I am not personally 
 acquainted with him but Cols Carrington & Heth are & they 
 speak highly of him. 
 
 I do not immediately recollect any others among the old offi 
 cers whom I could name for so high an office as the command of 
 a regiment. I am aware that those I have mentioned cannot 
 should you on further enquiry approve of them, be all ap 
 pointed, but I have named them because it is possible that those 
 first applied to may be disinclined to enter into the Army. 
 
 Virginia has sustained a very serious loss which all good men 
 will long lament, in the death of Mr. Henry. He is said to 
 have expired on Thursday last. The intelligence is not abso 
 lutely certain but scarcely a hope is entertained of its untruth. 
 With the most respectful attachment 
 
 I remain Sir, your obt Servt. 
 
 J. MARSHALL. 
 
176 THE POLITICAL AND ECONOMIC 
 
 LETTER FROM JOHN MARSHALL TO GEORGE WASHINGTON 
 
 RICHMOND, June 2ist 99. 
 DEAR SIR 
 
 An accidental absence from town prevented my returning 
 by the last mail the inclosed letter. 
 
 I am extremely happy that the liberty we have taken to sus 
 pend its transmission to Col Cropper has not displeased you. 
 
 Your second letter to that gentleman is just received & will 
 be immediately put in the post office with a proper direction. 
 With the most perfect respect & attachment 
 
 I remain Sir your obedt Servt 
 
 J. MARSHALL. 
 
 LETTER FROM JOHN MARSHALL TO JAMES MONROE 
 
 RICHMOND July i3th 1825. 
 DEAR SIR. 
 
 I am greatly flattered by your letters of the 29th of June 
 accompanying the documents stating your claims on the United 
 States. 
 
 There was undoubtedly great reason for your requesting 
 such a final settlement of all your accounts as would relieve you 
 from future disquiet ; and in making that settlement you have I 
 think a right to expect that the justice of your country will not 
 be stinted by any implied concession made under circumstances 
 when it could not be with held. I can perceive no reason why 
 you should not receive as much as has ever been allowed to 
 others for similar services; and I trust this reasonable expec 
 tation will not be disappointed. 
 
 With the sincerest wishes for your health and happiness and 
 with high and respectful esteem 
 
 I am dear Sir, 
 
 Your obedt 
 
 J. MARSHALL. 
 
 LETTER FROM JOHN MARSHALL TO GEORGE WASHINGTON 
 ^ 
 
 PHILADELPHIA July 7th. 97. 
 
 SIR. 
 
 I have had the pleasure of receiving from Mr. Pickering 
 your letter to me inclosing others for France intrusted to my 
 care, to the delivery of which I shall be particularly attentive. 
 
DOCTRINES OF JOHN MARSHALL 177 
 
 Receive Sir my warm & grateful acknowledgments for the 
 polite &, allow me to add, friendly wishes which you express 
 concerning myself as well as for the honor of being mentioned 
 in your letter. 
 
 I expect to embark in the course of the next week in the 
 Grace for Amsterdam there to join Genl Pinckney, & thence to 
 proceed if we be permitted to proceed to Paris. Mr. Gerry, 
 if he accepts the appointment, which is not yet certain, he 
 having requested some short time for deliberation, will follow, 
 Claypole s paper by the mail of today exhibits the case of M. 
 Blount. Opinions here are as various on this subject as on 
 every other not with respect M. Blount all concur in 
 giving him up, but with respect to the object of the scheme, 
 :he means of execution & the degree of crime or indiscretion 
 attached to different foreign ministers. It is by some conjec- 
 :ured that M Blount himself gave to the Spanish minister the 
 intelligence on which was founded his application to the gov 
 ernment of the United States. 
 
 I remain Sir with the most respectful attachment 
 
 Your Obedt Servt. J. MARSHALL. 
 
 LETTER FROM JOHN MARSHALL TO GEORGE WASHINGTON 
 
 PHILADELPHIA, June 22d 98. 
 DEAR SIR 
 
 Your letter to Genl Dumas was delivered by me to his lady 
 from whom in consequence of it I received during my stay in 
 Paris the most polite and flattering attention. She delivered 
 me the enclosed answer which was written in Copenhagen & 
 forwarded to her. 
 
 Having heard that Mrs Marshall is in Westchester I hope 
 immediately to set out for that place. 
 
 Permit me to acknowledge the receipt of your very polite 
 & obliging letter in answer to that which I did myself the honor 
 to address to you from the Hague. I had not Sir expected to 
 draw you into a correspondence which might intrude on your 
 leisure but merely to do myself the pleasure of communicating 
 to you occasionally such facts as it might be agreeable to you 
 to receive. 
 
 With the most sincere respect & attachment 
 
 I remain Sir your Obedt Servt. 
 
 J. MARSHALL. 
 
1 78 THE POLITICAL AND ECONOMIC 
 
 LETTER FROM JOHN MARSHALL TO JAMES MADISON 
 
 RICHMOND November 29. 1790 
 DEAR SIR: 
 
 My friend Mr. Giles will present you this He is partic 
 ularly desirous of being known to you. I should not presume 
 so far on the degree of your acquaintance with which I have 
 been honored as to introduce any gentleman to your attention 
 if I did not persuade myself that you will never regret or 
 change any favorable opinion you may form of him. 
 With much respect & esteem 
 I am dear Sir 
 
 Your obedt Servt 
 J. MARSHALL. 
 
 LETTER FROM JOHN MARSHALL TO JAMES MONROE 
 
 RICHMOND, June 25th 1812. 
 DEAR SIR. 
 
 On my return today from my farm where I pass a consider 
 able portion of my time in laborious relaxation, I found a 
 copy of the message of the President of ist inst. accompanied 
 by the report of the committe of foreign relations & the declara 
 tion of war against Britain [not clear]. 
 
 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 this interest of honor of our country, disap 
 point only its enemies. 
 
 Whether my prayer be heard or not I shall remain with re 
 spectful esteem 
 
 Your obedt Servt. 
 
 J. MARSHALL. 
 
 LETTER FROM JOHN MARSHALL TO JAMES MONROE 
 
 WASHINGTON March 7th 1825. 
 DEAR SIR. 
 
 Permit me to ask your acceptance of our colonia history 
 which is offered as a mark of the affectionate revolutions ex 
 cited in the bosom of the author when he looks back to times 
 long since gone by. 
 
 In the momentous and then unlocked for events which have 
 since taken place, you have filled a large space in the public 
 
DOCTRINES OF JOHN MARSHALL 179 
 
 mind, and have been conspicuously instrumental in effecting 
 objects of great interest to our common country. Believe me 
 when I congratulate you on the circumstances under which your 
 political course terminates, and that I feel sincere pleasure in 
 the persuasion that your administration may be reviewed with 
 real approbation by our wisest statesmen. 
 
 With great respect & esteem 
 
 I am dear Sir 
 
 Your obedt 
 J. MARSHALL. 
 
 LETTER FROM JOHN MARSHALL TO JAMES MONROE 
 
 RICHMOND June 13. 1822. 
 SIR. 
 
 I have received the copy of your message to Congress on 
 the subject of internal improvements which you did me the 
 honor to transmit me and thank you for it. I have read it 
 with great attention and interest. 
 
 This is a question which very much divides the opinions of 
 intelligent men ; and it is not to be expected that there will be 
 an entire concurrence in that you have expressed. All how 
 ever will I think admit that your views are profound and that 
 you have thought deeply on the subject. To me they appear 
 to be most generally just. 
 
 A general power over internal improvements, if to be exer 
 cised by the Union would certainly be cumbersome to the 
 government, & of no utility to the people. But to the extent 
 you recommend, it would be productive of no mischief, and of 
 great good. 
 
 I despair however of the adoption of such a measure. 
 With great respect and esteem 
 I am Sir, your Obedt Servt 
 J. MARSHALL. 
 
 LETTER FROM JOHN MARSHALL TO JAMES MONROE 
 
 RICHMOND December 9. 1823. 
 DEAR SIR. 
 
 I received yesterday the message of the President to Con 
 gress, franked by yourself. Allow me to express the grateful 
 sentiment with which I acknowledge this mark of polite atten- 
 
180 THE POLITICAL AND ECONOMIC 
 
 tion, and this wide use of your recollection of times which are 
 long passed away. I shall not forget it. 
 
 I have read with interest and attention the comprehensive 
 views which you have taken of our affairs, and think with you 
 that we cannot look on the present state of the world with 
 indifference. 
 
 With great respect and esteem 
 
 I remain your obedt 
 
 J. MARSHALL. 
 
 LETTER FROM JOHN MARSHALL TO JAMES MONROE 
 
 RICHMOND Dec. i3th 1824. 
 SIR 
 
 I am indebted to your polite attention for a copy of your 
 message to Congress and am much gratified by this mark of 
 your recollection. 
 
 While I take the liberty to express my personal regrets that 
 your retirement approaches so nearly, and that circumstances 
 are supposed to forbid your continuing to afford your services 
 to your country. I may be permitted to congratulate you on 
 the auspicious circumstances which have attended your course 
 as Chief Magistrate of the United States, and which crown 
 its termination. You may look back with pleasure to several 
 very interesting events which have taken place during your 
 administration, and have the rare felicity not to find the retro 
 spect darkened by a single spot the reviewer of which ought 
 to pain yourself or your fellow citizen. 
 
 With great & respectful esteem 
 
 I remain your obedt 
 
 J. MARSHALL. 
 
 LETTER FROM JOHN MARSHALL TO JAMES MONROE 
 
 RICHMOND July 30. 1826. 
 DEAR SIR. 
 
 I have had the pleasure of receiving your letter recommend 
 ing Mr. Randall to the vacant office in the clerkship of the 
 Supreme Court. I trust I need not say that there is no person 
 whose recommendation contains more influence with me than 
 yours. I feel the utmost confidence in the merit of this gentle 
 man, and that this office, should he receive the appointment 
 
DOCTRINES OF JOHN MARSHALL 181 
 
 will be well bestowed. To myself personally, though I am not 
 acquainted with him, it will be far from [not clear]. 
 
 I have never in my life been required to perform a more 
 painful duty than making this appointment. In addition to 
 the numbers & great respectability of the applicants, a circum 
 stance which of itself would create sufficient difficulty in making 
 a selection, the list exhibits many of my highly valued personal 
 friends, and the sons of others with whom I have been con 
 nected by ties of close affection & esteem. I cannot point to 
 one without looking at others, who must be excluded, with 
 extreme regret. Among those too who have supported indi 
 vidual and of course opposing candidates, are the most valued 
 friends I have in the world. In this to me new as well as a 
 distressing situation. I have made no positive determination, 
 but have uniformly said that a clerk must be appointed, and 
 that some sacrifice of individual preference must be made to 
 effect this necessary object. That under this conviction, I 
 shall go into the election prepared to support that one of the 
 many I could wish to appoint Who can unite a sufficient num 
 ber of votes to secure an appointment. I shall feel much more 
 chagrined at being compelled to pass by 10 manly deserving 
 men to whom I feel the best disposition. Than of pleasure at 
 giving my voice in favor of the successful candidate. I hope 
 you are not in danger of famine from the drought as many of 
 us are. With great respectful esteem 
 
 I am dear Sir, your Obedt 
 J. MARSHALL. 
 
 Letter from John Marshall and Andrew Ronold to Thomas 
 Jefferson. Their opinion that Farrell and Jones have a legal 
 claim against Randolph and Wayler. This letter is in Manu 
 script Division of Library of Congress, Series 6, Vol. 3, No. 86. 
 
 April i, 1791. 
 
 We are decidedly of opinion that if any engagement relative 
 to the consignment of a Gumeaman to Randolph & Wayler 
 was entered into subsequent to the receipt of Mr. Wayler s let 
 ter of the I4th of May 1772, That Messrs Parrel & Jones have 
 a good claim on the writer of that letter for indemnity. 
 
 ist April 1791. 
 ANDREW RONOLD 
 J. MARSHALL. 
 
1 82 THE POLITICAL AND ECONOMIC 
 
 Letter from John Marshall to Thomas Jefferson. This letter 
 is plainly dated " March 4th, 1781." But 1781 must be wrong, 
 for on the other side of the letter is written in Jefferson s hand : 
 " March 4th, 1801. Marshall John." 
 
 March 4th 1781. 
 [corrected 1801] 
 SIR. 
 
 I have received your letter requesting me to perform the 
 duties of Secretary of State until a successor be appointed. I 
 shall with great pleasure obey this request & beg leave to assure 
 you that I am with high & respectful consideration 
 Your obedt Humble Servt. 
 
 J. MARSHALL. 
 
 Letter from John Marshall to Thomas Jefferson. This letter 
 is in Series 6, Vol. 6, No. 8, Manuscript Division of Library of 
 Congress. It is labeled as having been dated probably 1797. 
 
 J. Marshall begs leave to accompany his respectful compli 
 ments to Mr. Jefferson with assurance of the regret he feels at 
 being absent when Mr. Jefferson did him the honor to call on 
 him. 
 
 J. Marshall is extremely sensible to the obliging expression 
 contained in Mr. Jefferson s polite billet of yesterday. 
 
 He sets out tomorrow for Winchester & would with pleasure 
 charge himself with any commands from Mr. Jefferson to that 
 part of Virginia. 
 
 (On the back is written " Marshall John.") 
 
 LETTER FROM JOHN MARSHALL TO THOMAS JEFFERSON 
 
 WASHINGTON March 2. 1801. 
 SIR. 
 
 I am this instant honored with yours of today. Not being 
 the Secretary of State, & only performing the duties of that 
 office at the request of the President, the request becomes 
 indispensably necessary to give validity to any act which pur 
 ports to be done on the 4th of March. 
 
 In the confidence that it will be viewed I shall immediately 
 proceed to sign the sea letters. No form is prescribed. Any 
 letter desiring me to do the duties of the office generally on the 
 4th of March will be sufficient. 
 
DOCTRINES OF JOHN MARSHALL 183 
 
 I shall with much pleasure attend to administer the oath of 
 office on the 4th & shall make a point of being punctual. The 
 records of the office of the department of state furnish no in 
 formation respecting the oaths which have been heretofore 
 taken. That prescribed in the constitution seems to me to be 
 the only one which is to be administered. I will however en 
 quire what has been the practice. 
 
 The chief clerk of this department will attend you at the 
 time requested 
 
 I have the honor to be with great respect Sir 
 
 Your most obedt hble servt 
 
 J. MARSHALL. 
 
 LETTER FROM JOHN MARSHALL TO JOHN AMBLER, ESQ., 
 OF NEAR WILLIAMSBURG, VA. 
 
 PHILADELPHIA Dec. 2Qth 99. 
 
 DEAR SIR. 
 
 Receive our sincere congratulations on your marriage & 
 our wishes for the happiness of Mrs. Ambler and yourself. 
 We have at this place no news but what is contained in the 
 public papers. They will show you the manner in which we 
 have manifested our deep affection for the loss of Genl Wash 
 ington. Never was mourning more universal or so generally 
 sincere. 
 
 Nothing of very serious importance has yet come before 
 Congress. The material business of the session is preparing 
 in the committees. I hope a mutual spirit of toleration and 
 forbearance will succeed to the violence which seemed in too 
 great a degree to govern last year. As far as I can judge 
 from present appearances this will be a temperate session & 
 I wish most devoutly that the prevalence of moderation here 
 may diffuse the same spirit among our fellow citizens at 
 large. 
 
 In the State of Pennsylvania there appears to be a consid 
 erable degree of exasperation among parties. The new Gov 
 ernor has, it is said, greatly increased it by turning or threaten 
 ing to turn out of office every man however respectable & 
 well qualified, who voted against him. I am told that every 
 clerk in the state is removed. The clerks here, who are [not 
 clear], hold their offices during the pleasure of the Governor. 
 
1 84 THE POLITICAL AND ECONOMIC 
 
 This is a very irritating measure & will koop up in a consider 
 able degree that party use for which this state has been long so 
 remarkable. 
 
 Molly joins me in compliments to Mr. Ambler. 
 I am dear Sir with much regard 
 
 Your Obedt 
 J. MARSHALL. 
 
 LETTER 62 FROM J. MARSHALL TO DANIEL WEBSTER 
 
 RICHMOND, June 6, 1832. 
 MY DEAR SIR : 
 
 I thank you very sincerely for the copy with which you have 
 favored me of your speeches on the bill for renewing the 
 charter of the Bank of the United States. I need not say 
 that I consider an accommodation of the tariff question itself 
 as scarcely more interesting to our country than the passage of 
 that bill. Your argument presents the subject in its strongest 
 point of view, and to me seems unanswerable. Mr. Ritchie, 
 in his Inquirer, informs the people of Virginia that Mr. Taze- 
 well has refuted you completely. This he may have done in 
 opinion of Mr. Ritchie. I have not seen Mr. Tazewell s 
 speech, and do not understand from The Inquirer whether his 
 refutation applies to your speech in favor of the bill or to that 
 against the amendment offered by Mr. Moor. By the way, 
 your argument against that amendment is founded in an idea 
 which to me is quite novel. I had often heard it advanced 
 that the States have no constitutional power to establish banks 
 of circulation, but never that Congress might not introduce 
 into the charter a restraining principle, which might prohibit 
 branches altogether, or require the assent of a State to their 
 introduction, or a principle which might subject them to State 
 taxation. This may be considered not as granting power of 
 taxation to a State, for a State possesses that power; but as 
 withdrawing a bar which the constitution opposes to the ex 
 ercise of this power over a franchise created by Congress for 
 national purposes, unless the constitution of the franchise in 
 its creation has this quality engrafted on it. I however am 
 far from undertaking to dissent from your proposition; I 
 only say it is new, and I ponder on it. 
 62 "Private Correspondence of Daniel Webster," Vol. I, pp. 518-519. 
 
DOCTRINES OF JOHN MARSHALL 185 
 
 With great and respectful esteem, I am your obedient serv 
 ant, 
 
 J. MARSHALL. 
 
 P. S. I only meant to express my obligation for your at 
 tention, and I have betrayed myself into the politics of the day. 
 
 LETTER 63 FROM CHIEF JUSTICE MARSHALL TO 
 DANIEL WEBSTER 
 
 RICHMOND, April 3, 1826. 
 
 DEAR SIR : 
 
 I had the pleasure of receiving a few days past, under cover 
 from you, the documents accompanying the late message of 
 the President to the House of Representatives on the Panama 
 mission. We anticipate a tolerably animated discussion of 
 this subject. I thank you very sincerely for this mark of 
 polite recollection, and beg you to believe that I remain with 
 sincere regard, 
 
 Yours, 
 J. MARSHALL. 
 
 LETTER** FROM CHIEF JUSTICE MARSHALL TO 
 DANIEL WEBSTER 
 
 RICHMOND, May 20, 1826. 
 
 DEAR SIR, I returned yesterday from North Carolina, and 
 had the pleasure of finding your speech on the mission to Pan 
 ama, under cover from yourself. I had previously read it with 
 deep interest, but was not on that account the less gratified 
 at this polite mark of your attention. I can preserve it more 
 certainly in a pamphlet form, than in that of a newspaper. 
 
 Whatever doubts may very fairly be entertained respecting 
 the policy of the mission, as an original measure, I think it 
 was not involved in much difficulty when considered as it 
 came before the House of Representatives. 
 
 I congratulate you on closing a most laborious session, and 
 am with great and respectful esteem, 
 
 Your obedient servant, 
 
 J. MARSHALL. 
 
 63 " Private Correspondence of Daniel Webster," Vol. I, p. 405. 
 
 64 " Ibid., pp. 406-407. 
 
1 86 THE POLITICAL AND ECONOMIC 
 
 LETTER FROM CHIEF JUSTICE MARSHALL TO 
 DANIEL WEBSTER 
 
 January 23, 1831. 
 DEAR SIR : 
 
 I have just received the copy of you " Speeches and Foren 
 sic Arguments," and am much flattered by this mark of your 
 attention. I beg you to present my compliments to Mrs. Web 
 ster; and to say that I think myself, in part, indebted to her 
 for it. At all events, she has, I perceive, had some agency in 
 conferring the favor. 
 
 I shall read the volume with pleasure, and preserve it with 
 care. 
 
 Will you allow me to say that, on looking over the con 
 tents, I felt at the first moment some disappointment at not 
 seeing two speeches delivered by you in the first Congress, I 
 believe, of which you were a member. 
 
 With great and respectful esteem, 
 
 I am, your obedient, 
 
 J. MARSHALL. 
 
 One of the first acts of Mr. Webster on entering Congress 
 was to introduce certain resolutions calling upon the Executive 
 for information respecting the time and mode in which the 
 repeal of the French Decrees had been communicated to our 
 Government. As this whole matter stood before the public 
 at the time of the declaration of war, it appeared that our 
 Government had been deceived by the French Ministry, or 
 that they were in possession of a repealing decree when the 
 war was declared, and had withheld it ; for no such degree had 
 made its appearance until after the declaration had passed 
 through Congress. Mr. Webster considered that the reputa 
 tion of this country was at stake in this affair, because the 
 French foreign secretary had declared to the American Min 
 ister at Paris, on the ist of May, 1812, that a copy of the re 
 pealing decree had been furnished to his predecessor, and 
 that another had been transmitted to the French Minister at 
 Washington at the time of its date, which was April 28, 1811. 
 Mr. Webster, therefore, for the purpose of eliciting all the 
 facts, and in order to have them placed in their true light be 
 fore the country, so framed his resolutions that, if they were 
 65 "Life of Daniel Webster," Curtis, Vol. I, p. no. 
 
DOCTRINES OF JOHN MARSHALL 187 
 
 answered at all, the whole matter must be disclosed. The 
 resolutions were introduced by him on the loth of June, 1813, 
 accompanied by some temperate remarks concerning the doubt 
 in which this matter was then enveloped. What Mr. Webster 
 said on this occasion strongly attracted the attention of Chief 
 Justice Marshall. 
 
 Nearly twenty years afterward, when Mr. Webster s col 
 lected speeches were first published, we see by the above let 
 ter that the Chief Justice was greatly disappointed at not 
 finding the speech, here alluded to, in the volume. 
 
 On the same day that the above letter was written to Web 
 ster by Marshall Judge Story wrote one to Webster also, 
 which further explains the above letter, and also verifies it in 
 an excellent manner, and shows the aged Chief Justice, now 
 seventy-five years old, to have a freshness of memory very un 
 usual. The letter from Judge Story to Daniel Webster was 
 as follows : 
 
 WASHINGTON, January 23, 1831. 
 MY DEAR SIR : 
 
 After the Chief Justice (Marshall) had received the volume 
 of your speeches this morning, he came into my chamber, and 
 told me he had been looking over the index, and noticed two 
 omissions of speeches which he remembered you had made 
 in Congress at an early period of your public life, and which 
 he had then read. One was on some resolutions, calling upon 
 President Madison for the proof of the repeal of the Berlin 
 and Milan Decrees; the other on the subject of the Previous 
 Question. He observed : " I read these speeches with very 
 great pleasure and satisfaction at the time. At the time when 
 the first was delivered, I did not know Mr. Webster; but I 
 was so much struck with it, that I did not hesitate then to 
 state that Mr. Webster was a very able man, and would be 
 come one of the very first statesmen in America, and perhaps 
 the very first." 
 
 Such praise from such a source ought to be very gratifying. 
 Consider that he is now seventy-five years old, and that he 
 speaks of his recollections of you some eighteen years ago with 
 a freshness which shows you how deeply your reasoning im 
 pressed itself on his mind. Keep this in memoriam rei. 
 
 Yours very truly, 
 THE HON. DANIEL WEBSTER. JOSEPH STORY. 
 
1 88 THE POLITICAL AND ECONOMIC 
 
 LETTER SB FROM JOHN MARSHALL ON THE MODE OF 
 SELECTING A PRESIDENT 
 
 James Wilson of Pennsylvania, one of the ablest and wis 
 est men of the country, in the Convention that framed the 
 Constitution (as appears in the " Debates " of that body, re 
 ported by Madison,) on the 24th of July, 1787, said the 
 great difficulty seems to spring from the Mode of election. 
 He suggested a mode, that the Executive be elected for six 
 years, by not more than fifteen members of the national leg 
 islature, to be drawn from it by lot, and to make the election 
 without separating, thus avoiding intrigue in the first instance, 
 and also diminishing dependence. 
 
 James Hillhouse was one of the strong men of the first age 
 of the Republic. On the I2th of April, 1808, he introduced 
 in the Senate of the United States certain articles of amend 
 ment of the Constitution, which included a reduction of the 
 term of office of the President to one year, of Senators to 
 three years, Congressmen to one year, and also the abolition 
 of the office of Vice-President. 
 
 Nothing came at the time from the proposals of either Mr. 
 Wilson or Mr. Hillhouse. The plans of these two distin 
 guished statesmen, like other truths, cannot be made accept 
 able, by any force of reason or persuasion, but only by expe 
 rience. Upham in his Life of Pickering says : " Expe 
 rience long ago wrought a conviction in the best minds known 
 in our history, that such a mode of selecting a President as 
 Mr. Hillhouse, following Mr. Wilson, had urged, ought to be 
 adopted." After the former had retired from public life, and 
 more than twenty years had intervened, he opened a corres 
 pondence on the very same subject with some of the most 
 eminent of his former associates and acquaintances. Chief 
 Justice Marshall, writing in 1830, says his " views of this sub 
 ject had changed a good deal since 1808." He also says: 
 " Your plan comes in conflict with so many opposing inter 
 ests and deep-rooted prejudices, that I would despair of its 
 success, were its ability still more apparent than it is." Again, 
 " We must proceed with our present system, till its evils be 
 come still more obvious." His views are fully presented in 
 the following passage : 
 66 " Life of Pickering," Vol. Ill, pp. 108, 109. 
 
DOCTRINES OF JOHN MARSHALL 189 
 
 " My own private mind has been slowly and reluctantly ad 
 vancing to the belief that the present mode of choosing the 
 Chief Magistrate threatens the most serious danger to the 
 public happiness. The passions of men are inflamed to so 
 fearful an extent, large masses are so embittered against each 
 other, that I dread the consequences. The election agitates 
 every section of the United States, and the ferment is never 
 to subside. Scarcely is a President elected, before the mach 
 inations, respecting a successor, commence. Every political 
 question is affected by it. All those who are in office, all 
 those who want office, are put in motion. The angriest, I 
 might say the worst, passions are roused, and put into full 
 activity. Vast masses united closely, move in opposite direc 
 tions, animated with the most hostile feelings towards each 
 other. What is to be the effect of all this? Age is, perhaps, 
 unreasonably timid. Certain it is, that I now dread conse 
 quences that I once thought imaginary. I feel disposed to 
 take refuge under some less turbulent and less dangerous mode 
 of choosing the Chief Magistrate; and my mind suggests 
 none less objectionable than that you have proposed. We 
 shall no longer be enlisted under the banners of particular men. 
 Strife will no longer be excited, when it can no longer effect its 
 object. Neither the people at large, nor the councils of the 
 nation, will be agitated by the all-disturbing question, Who 
 shall be President? Yet he will, in truth, be chosen sub 
 stantially by the people. The Senators must always be among 
 the most able men of the States. Though not appointed for 
 the particular purpose, they must always be appointed for im 
 portant purposes, and must possess a large share of the pub 
 lic confidence. 
 
 If the people of the United States were to elect as many 
 persons as compose one Senatorial class, and the President 
 was to be chosen among them by lot, in the manner you 
 propose, he would be substantially elected by the people; 
 and yet, such a mode of election would be recommended by 
 no advantages which your plan does not possess. In many 
 respects, it would be less eligible. 
 
 " Reasoning a priori, I should undoubtedly pronounce the 
 system adopted by the Convention the best that could be de 
 vised. Judging from experience, I am driven to a different 
 conclusion." 
 
I 9 o THE POLITICAL AND ECONOMIC 
 
 Chancellor Kent wrote as follows : " The popular election 
 of the President (which, by the way, was not intended by 
 the framers of the Constitution) is that part of the machine 
 of our government that I am afraid, is doomed to destroy 
 us." " Our plan of election of a President, I apprehend, has 
 failed of its purpose, as it was presumed and foretold that it 
 would fail, by some of the profoundest statesmen of 1787 . . . 
 has already disturbed and corrupted the administration of the 
 government, and cherishes intrigue, duplicity, abuse of power," 
 etc. 
 
 LETTER 7 FROM CHIEF JUSTICE MARSHALL TO 
 JAMES K. PAULDING 
 
 RICHMOND, April 4th 1835. 
 SIR: 
 
 Your favor of the 22d of March was received in the course 
 of the mail, but I have been confined to my room, and am 
 only now resuming my pen. 
 
 The single difficulty I feel in complying with your request 
 arises from my repugnance to anything which may be con 
 strued into an evidence of that paltry vanity which, if I know 
 myself forms no part of my character. To detail any con 
 versation which might seem to insinuate that General Wash 
 ington considered my engaging in the political transactions 
 of the United States an object of sufficient consequence to in 
 duce him to take an interest in effecting it, may look like 
 boasting that I held a more favorable place in the opinion 
 of that great man than the fact would justify. I do not, 
 however, think that this, perhaps, fastidious feeling would 
 justify a refusal to answer an enquiry made in terms entitled 
 to my sincere acknowledgments. 
 
 All who were then old enough to notice the public affairs 
 of the United States, recollect the arduous struggle of 1798 
 and 1799. General Washington, it is well known, took a deep 
 interest in it. He believed that the real independence, the 
 practical self government of our country, depended greatly 
 on its issue on our resisting the encroachments of France. 
 
 I had devoted myself to my profession, and, though actively 
 and zealously engaged in support of the measures of his ad- 
 
 ^ Lip pine ott s Magazine, Vol. II, pp. 624-625. 
 
DOCTRINES OF JOHN MARSHALL 191 
 
 ministration in the legislature of Virginia, had uniformly de 
 clined any situation which might withdraw me from the bar. 
 In 1798 I was very strongly pressed by the Federalists to be 
 come a candidate for Congress, and the gentleman of the 
 party who had offered himself to the district, proposed to re 
 sign his pretensions in my favor. I had however positively 
 refused to accede to the proposition and believed that I could 
 not be induced to change my determination. In this state of 
 things, in August or September 1798 as well as I recollect, I 
 received an invitation from General Washington to accompany 
 his nephew, the late Judge Washington on a visit to Mount 
 Vernon. I accepted the invitation, and remained at Mount 
 Vernon four or five days. During this time the walk and 
 conversation in the Piazza, mentioned by Mr. Lewis took place. 
 
 General Washington urged the importance of the crisis, 
 expressed his decided conviction that every man who could 
 contribute to the success of sound opinions was required by 
 the most sacred duty to offer his services to the public, and 
 pressed me to come into the Congress of the ensuing year. 
 
 After the very natural declaration of distrust in my ability 
 to do any good, I told him that I had made large pecuniary 
 engagements which required close attention to my profes 
 sion, and w^hich would distress me should the emoluments de 
 rived from it be abandoned. I also mentioned the assurance 
 I had given to the gentleman then a candidate, which I could 
 not honorably violate. 
 
 He thought that gentleman would still willingly withdraw 
 in my favor, and that my becoming a member of Congress for 
 the present, would not sacrifice my practice as a lawyer. At 
 any rate the sacrifice might be temporary. 
 
 After continuing this conversation for some time, he directed 
 my attention to his own conduct. He had withdrawn from 
 office with a declaration of his determination never again, un 
 der any circumstances, to enter public life. No man could be 
 more sincere in making that declaration, nor could any man 
 feel stronger motives for adhering to it. No man could make 
 a stronger sacrifice than he did in breaking a resolution 
 thus publicly made, and which he had believed to be unalterable. 
 Yet, I saw him, in opposition to his public declaration, in oppo 
 sition to his private feelings, consenting, under a sense of duty, 
 to surrender the sweets of retirement, and again to enter the 
 
192 DOCTRINES OF JOHN MARSHALL 
 
 most arduous and perilous station which an individual could fill. 
 My resolution yielded to this presentation. After remark 
 ing that the obligation which had controuled his course was 
 essentially different from that which bound me that no 
 other man could fill the place to which his country had called 
 him, whereas my services could weigh but little in the politi 
 cal balance, I consented to become a candidate, and have con 
 tinued, ever since my election, in public life. 
 
 This letter is intended to be private, and you will readily 
 perceive the unfitness of making it public. It is written be 
 cause it has been requested in polite and obliging terms, and 
 because I am willing, should your own views induce you to 
 mention the fact derived from Mr. Lewis, to give you the as 
 surance of its truth. 
 
 With very great respect, 
 
 I am, Sir, 
 Your Obed t Serv t, 
 
 J. MARSHALL. 
 
 Mr. James K. Paulding was gathering material for a life 
 of Washington when he heard of a story concerning Marshall s 
 candidacy for Congress. He wrote to Marshall about it, and 
 this letter was then written, a short while before Chief Jus 
 tice Marshall died. 
 
CHAPTER III 
 
 A FEW IMPORTANT LETTERS TO CHIEF JUSTICE MARSHALL 
 
 President Washington s letter offering to John Marshall the 
 office of Attorney General, which he declined, because he pre 
 ferred professional life to public, was as follows : 
 
 PHILADELPHIA, August 26, 1795. 
 DEAR SIR : 
 
 The office of Attorney-General of the United States has 
 become vacant by the death of Mr. Bradford. I take the 
 earliest opportunity of asking if you will accept the appoint 
 ment? The salary annexed thereto and the prospect of a lu 
 crative practice in this city, the present seat of the government, 
 must be as well known to you as, better perhaps, than they are 
 to me and therefore I shall say nothing concerning them. If 
 your answer is in the affirmative, it will readily occur to you, 
 that no unnecessary time should be lost in repairing to this 
 place. If on the contrary it should be in the negative, which I 
 should be very sorry for, it might be as well to say nothing of 
 this offer. But in either case I pray you give me an answer 
 as promptly as you can. 
 
 With esteem and regard, I am, etc., 
 
 GEORGE WASHINGTON. 
 
 A short time after Justice Story completed his three volumes 
 of " Commentaries on the Constitution " he wrote an Abridg 
 ment of it, which was prepared as a text-book for the Law 
 School and College. This work was dedicated to Chief Justice 
 Marshall in the letter that follows. 
 
 To THE HONORABLE JOHN MARSHALL, LL.D., CHIEF JUS 
 TICE OF THE UNITED STATES OF AMERICA 
 
 CAMBRIDGE, January, 1833. 
 SIR: 
 
 I ask the favor of dedicating this work to you. I know 
 
 193 
 
194 THE POLITICAL AND ECONOMIC 
 
 not to whom it could with so much propriety be dedicated, as 
 to one whose youth was engaged in the arduous enterprises 
 of the Revolution ;. whose manhood assisted in framing and 
 supporting the national Constitution ; and whose maturer years 
 have been devoted to the task of unfolding its powers and il 
 lustrating its principles. When, indeed, I look back upon your 
 judicial labors, during a period of thirty-two years, it is diffi 
 cult to suppress astonishment at their extent and variety, and 
 at the exact learning, the profound reasoning, and the solid 
 principles which they everywhere display. Other judges have 
 attained an elevated reputation by similar labors, in a single 
 department of jurisprudence. But in one department, (it 
 need scarcely be said that I allude to that of constitutional 
 law,) the common consent of your countrymen has admitted 
 you to stand without a rival. Posterity will assuredly con 
 firm, by its deliberate award, what the present age has ap 
 proved, as an act of undisputed justice. Your expositions of 
 constitutional law enjoy a rare and extraordinary authority. 
 They constitute a monument of fame far beyond the ordinary 
 memorials of political and military glory. They are destined 
 to enlighten, instruct, and convince future generations; and 
 can scarcely perish but with the memory of the Constitution 
 itself. They are the victories of a mind accustomed to grapple 
 with difficulties, capable of unfolding the most comprehensive 
 truths with masculine simplicity and severe logic, and prompt 
 to dissipate the illusions of ingenious doubt, and subtle argu 
 ment, and impassioned eloquence. They remind us of some 
 mighty river of our own country, which, gathering in its 
 course the contributions of many tributary streams, pours at 
 last its own current into the ocean, deep, clear, and irresistible. 
 
 But I confess that I dwell with even more pleasure upon 
 the entirety of a life adorned by consistent principles, and 
 filled up in the discharge of virtuous duty; where there is noth 
 ing to regret, and nothing to conceal ; no friendships broken ; 
 no confidence betrayed ; no timid surrenders to popular clamor ; 
 no eager reaches for popular favor. Who does not listen with 
 conscious pride to the truth, that the disciple, the friend, the 
 biographer of Washington, still lives, the uncompromising ad 
 vocate of his principles? 
 
 I am but too sensible that, to some minds, the time may not 
 seem yet to have arrived, when language like this, however 
 
DOCTRINES OF JOHN MARSHALL 195 
 
 true, should meet the eyes of the public. May the period be 
 yet far distant, when praise shall speak out with that fullness 
 of utterance which belongs to the sanctity of the grave. 
 
 But I know not that, in the course of Providence, the priv 
 ilege will be allowed me hereafter to declare, in any suitable 
 form, my deep sense of the obligations which the jurisprudence 
 of my country owes to your labors, of which I have been for 
 twenty-one years a witness, and in some humble measure a 
 companion. And if any apology should be required for my 
 present freedom, may I not say that, at your age, all reserve 
 may well be spared, since all your labors must soon belong ex 
 clusively to history? 
 
 Allow me to add, that I have a desire (will it be deemed pre 
 sumptuous?) to record upon these pages the memory of a 
 friendship, which has for so many years been to me a source 
 of inexpressable satisfaction ; and which, I indulge the hope, 
 may continue to accompany and cheer me to the close of life. 
 I am, with the highest respect, 
 
 Affectionately your servant, 
 
 JOSEPH STORY. 
 
 LETTER FROM THOMAS JEFFERSON TO JOHN MARSHALL 
 
 Chief Justice Marshall went to France as one of the En 
 voys, with Pinckney and Gerry. Upon his return from France 
 the following note was received from Thomas Jefferson, who 
 was at the time secretly trying to ruin him. In after years 
 the Chief Justice frequently laughed over it, saying, " Mr. Jef 
 ferson came very near writing the truth ; the added un to lucky 
 policy alone demanded." The note, now the property of one 
 of his granddaughters, is as follows : 
 
 Thos. Jefferson presents his compliments to General 
 Marshall. He had the honor of calling at his lodgings twice 
 this morning, but was so unlucky as to find that he was out on 
 both occasions. He wished to have expressed in person his 
 regret that a pre-engagement for today, which could not be 
 dispenced with, would prevent him the satisfaction of dining 
 in company with Genl. Marshall, and therefore begs leave to 
 j place here the expressions of that respect which in company 
 | with his fellow citizens he bears him. 
 
 GENL. MARSHALL 
 
 at Oeller s Hotel, June 23d, 1798. 
 
196 DOCTRINES OF JOHN MARSHALL 
 
 JOHN MARSHALL SWORN IN AS COUNCILOR 
 
 In the " Calendar of Virginia State Papers and Other Manu 
 scripts, from January, 1782, to December 31, 1784," in the 
 Capitol at Richmond, is to be found the following anounce- 
 ment: 
 
 November 3Oth, 
 Richmond. 
 John Marshall 
 sworn as 
 Counsellor. 
 
 City of Richmond, ss : 
 
 This day personally appeared be 
 fore me, one of the Aldermen of the 
 said City, John Marshall, Esq r, and 
 took the Oaths of fidelity and a 
 Privy Counsellor as prescribed by 
 law. 
 
 Certified under my Hand this 
 thirtieth day of November, 1782. 
 J. AMBLER. 
 
CHAPTER IV 
 
 MISCELLANEOUS WRITINGS 
 AUTOBIOGRAPHY OF JOHN MARSHALL 
 
 " I was born on the 24th of September, 1755, in the county 
 of Fauquier in Virginia. My father, Thomas Marshall, was 
 the eldest son of John Marshall, who intermarried with a 
 Miss Markham, and whose parents migrated from Wales, and 
 settled in the county of Westmoreland in Virginia, where my 
 father was born. My mother was named Mary Keith; she 
 was the daughter of a clergyman of the name of Keith who 
 migrated from Scotland, and intermarried with a Miss Ran 
 dolph on James River. 
 
 " I was educated at home, under the direction of my father, 
 who was a planter, but was often called from home as a sur 
 veyor. From my infancy I was destined for the bar; but 
 the contest between the mother country and her colonies drew 
 me from my studies and my father from the superintendence 
 of them; and in September 1775^ I entered into the service as 
 a subaltern. I continued in the army until the year 1781, 
 when, being without a command, I resigned my commission, in 
 the interval between the invasions of Virginia by Arnold and 
 Phillips. 
 
 " In the year 1782, I was elected into the legislature of 
 Virginia; and in the fall session of the same year was chosen 
 a member of the executive council of that State. 
 
 " In January, 1783, I intermarried with Mary Willis Am 
 bler, the second daughter of Mr. Jacquelin Ambler, then treas 
 urer of Virginia, who was the third son of Mr. Richard Am 
 bler, a gentleman who had migrated from England, and set 
 tled at Yorktown in Virginia. 
 
 " In April, 1784, I resigned my seat in the executive coun 
 cil, and came to the bar, at which I continued, declining any 
 other public office than a seat in the legislature, until the year 
 1797, when I was associated with General Pinckney and Mr. 
 Gerry in a mission to France. In 1798, I returned to the 
 United States; and in the spring of 1799 was elected a mem- 
 
 197 
 
198 THE POLITICAL AND ECONOMIC 
 
 her of Congress, a candidate for which, much against my in 
 clination, I was induced to become by the request of General 
 Washington. 
 
 " At the close of the first session, I was nominated, first to 
 the Department of War, and afterwards to that of state, which 
 last office I accepted, and in which I continued until the be 
 ginning of the year 1801, when Mr. Ellsworth having resigned, 
 and Mr. Jay having declined his appointment, I was nominated 
 to the office of Chief Justice, which I still hold. 
 
 " I am the oldest of fifteen children, all of whom lived to 
 be married, and of whom nine are now living. My father 
 died when about seventy- four years of age; and my mother, 
 who survived him about seven years, died about the same age. 
 I do not recollect all the societies to which I belong, though 
 they are very numerous. I have written no book, except the 
 Life of Washington, which was executed with so much pre 
 cipitation as to require much correction." 
 
 A pamphlet entitled " An Address on the Life, Character 
 and Influence of Chief Justice Marshall, delivered at Rich 
 mond on the fourth day of February, 1901, at the request of 
 the State Bar Association of Virginia and the Bar Associa 
 tion of the City of Richmond, by Horace Gray," contains the 
 above autobiography. Justice Gray says that his earliest 
 knowledge of the existence of such an autobiography was ob 
 tained from a thin pamphlet, published at Columbus, Ohio, in 
 1848, which was found in an old bookstore in Boston. It 
 contained, besides Marshall s famous speech in Congress on 
 the case of Jonathan Robbins, only a letter, entitled " Auto 
 biography of John Marshall." The internal evidence of its 
 genuineness is very strong; and its authenticity is put almost 
 beyond a doubt by a facsimile, at present in the Virginia 
 State Library, of a folio sheet in Marshall s handwriting, 
 which, although it contains neither the whole of the letter 
 nor its address, bears the same date, and contains the princi 
 pal paragraph of the letter, word for word, with the correc 
 tions of the original manuscript, immediately followed by his 
 signature. Justice Gray says that in his researches, incited 
 by the invitation to speak on the life of Marshall, he found a 
 letter from Chief Justice Marshall, dated Richmond, March 
 22, 1818, and addressed to Joseph Delaplaine, Esq., Phila- 
 
DOCTRINES OF JOHN MARSHALL 199 
 
 delphia. D elaplaine was then publishing, in numbers, his 
 " Repository of the Lives and Portraits of Distinguished Amer 
 ican Characters," which was discontinued soon afterward, with 
 out ever including Marshall. The letter purports to have been 
 written in answer to one " requesting some account of my 
 birth, parentage, and so on," and the autobiography was the 
 result. It reads as if it was meant for publication, and no 
 doubt would have been published if the " Repository " had ever 
 been completed. 
 
 THE WILL OF CHIEF JUSTICE MARSHALL 
 
 The will of John Marshall is on file in Richmond, Virginia. 
 It is in many respects a singular will. The estate consists 
 chiefly of land, part of which is known as the famous " Gren- 
 way Court," which was the forest home of Lord Fair 
 fax. George Washington surveyed this land, and was quite 
 often a guest at the place. Sallie E. Marshall Hardy says 
 that the Chief Justice bought part of this property; the rest 
 he received as a fee for arranging the dispute between the 
 State of Virginia and Lord Fairfax s heir, Dr. Fairfax, of 
 England, who, it was claimed, was an " alien enemy during 
 the Revolutionary War, and therefore had forfeited his in 
 heritance." 
 
 The will is dated April 9, 1832, and has five codicils, of 
 which the last was written but a short time before his death. 
 The codicils are dated as follows: August 13, 1832; March 
 29. l8 34; July 3> l8 34; November 6, 1834; July 3, 1835; and 
 at the end of each the following sentence appears : :< This 
 codicil was wholly written by myself. J. Marshall." The 
 will, which was probated in Richmond, in July, 1835, is in 
 his own characteristic handwriting. 
 
 " I, John Marshall, do make this my last will and testament, 
 entirely in my own handwriting, this ninth day of April, 1832. 
 I owe nothing on my own account," and so on. 
 
 Then he arranged for the disposal of an estate he held in 
 trust and for the settlement of a suit for some property which 
 he purchased and for the note of a friend which he had en 
 dorsed. The settlement of the suit did not take place until 
 about forty years after the death of Marshall, so great was the 
 
200 THE POLITICAL AND ECONOMIC 
 
 law s d^lay, and when it was settled the multiplicity of heirs 
 was so great that each one received but eleven dollars as a 
 share of several thousands. 
 
 The estate was equally divided between his five sons and an 
 only daughter. He leaves the share of his daughter in trust, 
 and says : 
 
 " I have long thought that the provision intended by a 
 parent for a daughter ought, in common prudence, to be se 
 cured to herself and children, so as to protect her and them 
 from distress, whatever casualties may happen. Under this 
 impression, without derogating from the esteem and affec 
 tion I feel for my son-in-law, I give to my nephew, Thomas M. 
 Anbler, in trust, to apply the annual profits to the maintenance 
 of my daughter and her family and for the education of her 
 children, for her and their separate use, not to be subject to 
 the control of her husband or to the payment of his debts." 
 He then recommends that the son-in-law be employed as agent 
 to manage the daughter s estate, and in the event that he 
 should survive her, there was to be paid to him one-half of 
 the annual profits for his own use, out of the profits of the 
 property bequeathed to the daughter and her offspring. 
 
 John Marshall had a very deep love and lasting reverence 
 for his wife, who died several years before he did. Part of 
 the will shows that he remembered her slightest wish, for at 
 her request he gives to one of her friends the dividends on ten 
 bank shares during life, " as a token of my wife s gratitude for 
 long and valuable attentions." That part of the will is as fol 
 lows: 
 
 " My beloved wife requested me while living to hold in 
 trust for our daughter one hundred bank-shares, to pay the 
 dividends to her during my life and to secure the same to her 
 and her children when Providence should call me, also, from 
 this world. In compliance with the wish of her whose sainted 
 spirit has fled from the sufferings inflicted on her in this life, I 
 give," and so on. " My daughter will never forget that this 
 is the gift of the best and most affectionate of mothers." He 
 gives to each of his grandsons named John one thousand acres 
 of land, and adds : 
 
 " If at the time of my death either of my sons should have 
 no son named John, then I give the land to any son he may 
 have named Thomas in token of my love for my father and 
 
DOCTRINES OF JOHN MARSHALL 201 
 
 veneration for his memory. If there shall be no son, named 
 John or Thomas, then I give the land to the eldest sons, and 
 if no sons to the daughters." 
 
 " I had heretofore appointed my sons and son-in-law as exec 
 utors of my last will. In the apprehension that the appoint 
 ments of so many executors may produce some confusion in 
 the management of my affairs, I have changed my purpose 
 and have determined to select one of my own sons who may 
 be sufficiently active to attend completely to the business. I 
 therefore appoint my son, James Keith Marshall, to be my sole 
 executor, directing that no surety shall be required from him, 
 and allowing him $1000 for his pains. I hereby revoke all 
 former and other wills and declare this to be my last will, 
 written in my hand, on two sheets of paper, this ninth day of 
 April, one thousand eight hundred and thirty-two. J. MAR 
 SHALL." 
 
 Among other possessions Judge Marshall owned a number 
 of slaves. His body-servant, and perhaps his favorite slave, 
 was disposed of in one of the codicils of the will as follows: 
 
 " It is my wish to emancipate my faithful servant, Robin, 
 and I direct his emancipation if he chuses to conform to the 
 laws on that subject requiring that he should leave the state, or 
 if permission can be obtained for his continuing to reside in 
 it. In the event of his going to Liberia, I give him one hun 
 dred dollars; if he does not go thither I give him fifty dollars. 
 Should it be impracticable to liberaye him consistently with 
 law and his own inclination, I desire that he may chuse his 
 master among my sons, or if he prefer my daughter, he may be 
 held for her and her family as is the other property bequeathed 
 in trust for her, and that he may always be treated as a faith 
 ful, meritorious servant. J. MARSHALL." 
 
 CHIEF JUSTICE MARSHALL S EULOGY UPON HIS WIFE 
 
 " Recently while in attendance at a Sunday-School conven 
 tion at Washington, Mason County, in this state, I was in 
 vited, with several others, to dine with the family of the Hon. 
 Martin P. Marshall, a resident of the village. 
 
 " Mr. Marshall is one of the most gifted and cultivated men 
 of the State. He was at one time somewhat prominent in 
 
202 THE POLITICAL AND ECONOMIC 
 
 public affairs. He is now advanced in years, however, and is 
 living the life of a retired private citizen. 
 
 " He is a nephew of the Hon. John Marshall, deceased, for 
 merly Chief Justice of the United States, and was in the 
 earlier years of his life a member of the Chief Justice s family. 
 
 " In conversation in regard to his uncle he spoke in terms of 
 the warmest admiration of his character. Daily intercourse 
 with him had taught him to revere and love him. He dwelt 
 particularly upon the simplicity and beauty of his private life. 
 He was a model of what a husband should be to the wife of 
 his bosom in respect to the love which he should cherish for her, 
 the tenderness with which he should watch over her and 
 nurse her in failing health, and the fondness with which he 
 should think of her when death has taken her from his arms. 
 
 " Rising in the midst of his remarks, our host invited an 
 other gentleman and myself, who were listening to him, into 
 his private apartment, and there opening a drawer, he took out 
 and read to us a paper written by the Chief Justice on the 
 first anniversary of his wife s death, in memory of his love 
 for her, and of the excellences of her life and character. 
 
 " I asked him if the paper had ever been published. He said 
 that it had not; that he kept it sacred as a private legacy, 
 and had never obtained his own consent to let it be given to 
 the public. I said to him that I thought it ought to be pub 
 lished, as I believed that it would be read with interest and 
 profit by all into whose hands it would come. Just then we 
 were called to dinner. 
 
 " Afterward the conversation in regard to the paper was re 
 newed, and before I left the house, Mr. Marshall yielded his 
 consent to have it published, and handed it to me for that 
 purpose. 
 
 " A copy of it is herewith inclosed, with the belief that its 
 publication will increase the respect which the people of this 
 country already feel for the memory of its author, and at the 
 same time enhance their appreciation of the domestic virtues 
 which were so beautifully and admirably illustrated in the life 
 of the great Chief Justice. D. S. 
 
 " Kentucky, August 20, 1881." 
 
 The following letter was sent to me by the Rev. D. Steven 
 son, with a copy of the eulogy which was published in the year 
 1882 in Harper s, Vol. LXV, pp. 771-773. 
 
DOCTRINES OF JOHN MARSHALL 203 
 
 THE EULOGY 
 
 December 25, 1832. 
 
 This day of joy and festivity to the whole Christian world 
 is to my sad heart the anniversary of the keenest affliction 
 which humanity can sustain. While all around is gladness, my 
 mind dwells on the silent tomb, and cherishes the remembrance 
 of the beloved object it contains. 
 
 On the 25th of December it was the will of Heaven to take 
 to itself the companion who had sweetened the choicest part 
 of my life, had rendered toil a pleasure, had partaken of all 
 my feelings, and was enthroned in the inmost recess of my 
 heart. 
 
 Never can I cease to feel the loss, and to deplore it. Grief 
 for her is too sacred ever to be profound on this day, which 
 shall be during my existence devoted to her memory. 
 
 On the 3d of January, 1783, I was united by the holiest 
 bonds to the woman I adored. From the hour of our union 
 to that of our separation I never ceased to thank Heaven for 
 this its best gift. Not a moment passed in which I did not 
 consider her as a blessing from which the chief happiness of 
 my life was derived. 
 
 This never-dying sentiment, originating in love, was cher 
 ished by a long and close observation of as amiable and es 
 timable qualities as ever adorned the female bosom. 
 
 To a person which in youth was very attractive, to manners 
 uncommonly pleasing, she added a fine understanding, and the 
 sweetest temper which can accompany a just and modest sense 
 of what was due to herself. 
 
 I saw her first the week she attained the age of fourteen, 
 and was greatly pleased with her. 
 
 Girls then came into company much earlier than at pres 
 ent. As my attentions, though without any avowed purpose, 
 nor so open and direct as to alarm, soon became ardent and 
 assiduous, her heart received an impression which could never 
 be effaced. Having felt no prior attachment, she became at 
 sixteen a most devoted wife. All my faults and they were 
 too many could never weaken this sentiment. It formed a 
 part of her existence. Her judgment was so sound and so 
 safe that I have often relied upon it in situations of some per 
 plexity. I do not remember ever to have regretted the adop 
 tion of her opinion. I have sometimes regretted its rejection. 
 
204 THE POLITICAL AND ECONOMIC 
 
 From native timidity she was opposed to everything ad 
 venturous, yet few females possessed more real firmness. 
 
 That timidity so influenced her manners that I could rarely 
 prevail on her to display in company the talents I knew her 
 to possess. They were reserved for her husband and her se 
 lect friends. Though serious as well as gentle in her deport 
 ment, she possessed a good deal of chaste, delicate, and play 
 ful wit, and if she permitted herself to indulge this talent, 
 told her little story with grace, and could mimic very suc 
 cessfully the peculiarities of the person who was its subject. 
 
 She had a fine taste for belle-lettre reading, which was ju 
 diciously applied in the selection of pieces she admired. 
 
 This quality, by improving her talents for conversation, con 
 tributed not inconsiderably to make her a most desirable and 
 agreeable companion. It beguiled many of those winter even 
 ings during which her protracted ill health and her feeble nerv 
 ous system confined us entirely to each other. I can never 
 cease to look back on them with deep interest and regret. Time 
 has not diminished, and will not diminish, this interest and 
 this regret. 
 
 In all the relations of life she was a model with those to 
 whom it was given can not imitate too closely. As the wife, 
 the mother, the mistress of a family, and the friend, her life 
 furnished an example of those who could observe intimately 
 which will not be forgotten. She felt deeply the distress of 
 others, and indulged the feeling liberally on objects she be 
 lieved to be meritorious. 
 
 She was educated with a profound reverence for religion, 
 which she preserved to her last moment. This sentiment 
 among her earliest and deepest impressions gave character to 
 her whole life. Hers was the religion taught by the Saviour 
 of man. She was cheerful, mild, benevolent, serious, humane, 
 intent, on self -improvement and the improvement of those who 
 looked to her for precept or example. She was a firm be 
 liever in the faith inculcated by the Church in which she 
 was bred, but her soft and gentle temper was incapable of 
 adopting the gloomy and austere dogmas which some of its 
 professors have sought to ingraft on it. 
 
 r I have lost her, and with her I have lost the solace of my 
 t life. Yet she remains still the companion of my retired hours, 
 
DOCTRINES OF JOHN MARSHALL 205 
 
 still occupies my inmost bosom. When alone and unemployed, 
 my mind unceasingly recurs to her. 
 
 More than a thousand times since the 25th of December, 
 1831, have I repeated to myself the beautiful lines written by 
 Burgoyne under a similar affliction, substituting Mary for 
 Anna: 
 
 " Encompassed in an angel s frame 
 
 An angel s virtues lay : 
 How soon did Heaven assert its claim, 
 And take its own way ! 
 
 " My Mary s worth, my Mary s charms, 
 
 Can never more return. 
 What now shall fill these widowed arms? 
 Ah me! my Mary s urn 
 Ah me! ah me! my Mary s urn." 
 
 MARSHALL ON PUBLIC LANDS 
 
 Mr. Marshall, from the Committee to whom was referred 
 the consideration of the expediency of accepting from the 
 State of Connecticut a cession of jurisdiction of the territory 
 west of Pennsylvania, commonly called the Western Reserve of 
 Connecticut, with directions to report by bill, or otherwise, 
 made the following report : 
 
 That, in the year 1606, on the loth of April, James I, 
 King of England, on the application of Sir Thomas Gates and 
 others, for a license to settle a colony in that part of America 
 called Virginia, not possessed by any Christian prince or 
 people, between the thirty-fourth and forty-fifth degrees of 
 north latitude, granted them a charter. In order to facili 
 tate the settlement of the country, and at the request of the 
 adventurers, he divided it into two colonies. To the first 
 colony, consisting of citizens of London, he granted, " That 
 they might begin their first plantation and habitation at any 
 placr on the said coast of Virginia or America, where they 
 p 1 , think fit and convenient, between the said four-and- 
 tiiirty and one-and-forty degrees of the said latitude; and 
 they shall have all lands, &c, from the said first seat of their 
 plantation and habitation, by the space of fifty miles, of Eng 
 lish statute measure, all along the said coast of Virginia and 
 America, towards the west and southwest, as the coast lieth, 
 with all the islands, within one hundred miles, directly over 
 
206 THE POLITICAL AND ECONOMIC 
 
 and against the same seacoast ; and also all the lands, &c, from 
 said place of their first plantation and habitation, for the 
 space of fifty like English miles, all along the said coast of 
 Virginia and America, towards the east and northeast, or 
 towards the north, as the coast lieth, with all the islands, 
 within one hundred miles, directly over and against the said 
 seacoast ; and also all the lands, &c, from the same fifty miles 
 every way on the seacoast, directly into the main land, by the 
 space of one hundred like English miles : and that no other 
 subjects should be allowed to settle on the back of them, to 
 wards the main land, without written license from the coun 
 cil of the colony." 
 
 To the second colony, consisting of Thomas Hanham and 
 others, of the town of Plymouth, King James granted the 
 tract between the thirty-eighth and forty-fifth degrees of north 
 latitude, under the same description as the aforesaid grant 
 was made to the first colony. To these grants a considera 
 tion was annexed, that a plantation should not be made within 
 one hundred miles of a prior plantation. 
 
 By the same charter, the King agreed that he would give 
 and grant, by letters patent, to such persons, their heirs, and 
 assigns, as the council of each colony, or the most part of 
 them, should nominate or assign, all the lands, tenements, and 
 hereditaments, which should be within the precincts limited 
 for each colony, to be holden of him, his heirs and succes 
 sors as for the manor of East Greenwich, in the county of 
 Kent, in free and common soccage only, and not in capite. 
 And that such letters patent should be sufficient assurance 
 from the patentees, so distributed and divided amongst the 
 undertakers for the plantations of the several colonies, and 
 such as should make their plantations in either of the said 
 several colonies in such manner and form, and for such es 
 tates, as shall be ordered, and set down by the council of 
 said colony, or the most part of them, respectively, within 
 which the same lands, tenements, or hereditaments, shall lie 
 or be : although express mention of the true yearly value or 
 certainty of the premises, or any of them, or of any other 
 gifts or grants, by the King, or any of his progenitors, or 
 predecessors, to the guarantees was not made, or any statute, 
 &c, to the contrary notwithstanding. 
 
DOCTRINES OF JOHN MARSHALL 207 
 
 On the 23d of May, 1609, King James, on the application of 
 the first colony for a further enlargement and explanation of 
 the first grant, gave them a second charter, in which they 
 were incorporated by the name of " The Treasurer and Com 
 pany of Adventurers and Planters of the city of London, for 
 the first colony of Virginia." 
 
 In this charter the King grants to them all the lands, &c, 
 in that part of America called Virginia, from the point of 
 land called Cape or Point Comfort, all along the seacoast, 
 to the northward, two hundred miles; and from the said 
 Point of Cape Comfort, all along the seacoast, to the south 
 ward, two hundred miles; and all that space and circuit of 
 land, lying from the seacoast of the precinct aforesaid up into 
 the main land throughout, from sea to sea, west and north 
 west; and also all the islands within one hundred miles along 
 the coast of both seas of the precinct aforesaid. 
 
 On the I2th of March, 1611-12, on the representation that 
 there were several islands without the foregoing grant, and 
 contiguous to the coast of Virginia, and on the request of 
 the said first colony, for an enlargement of the former let 
 ters patent, as well as for more ample extent of their limits 
 and territories in to the seas adjoining to and upon the coast 
 of Virginia, as for the better government of the said colony, 
 King James granted them another charter. After reciting 
 the description of the second grant, he then proceeds to give, 
 grant, and confirm, to the Treasurer and Company of Ad 
 venturers and Planters of the city of London for the first 
 colony of Virginia, and their heirs, &c. " all and singular 
 those islands, whatsoever, situate and being in any part of the 
 ocean, seas, bordering on the coast of our said first colony 
 in Virginia, and being within three hundred leagues of any 
 of the parts heretofore granted to the said Treasurer and 
 Company in said former letters patent as aforesaid, and be 
 ing within the one-and-fortieth and thirtieth degrees of north 
 erly latitude, with all the lands, &c. both within the said tract 
 of land on the main, and also within the said islands and 
 seas adjoining, &c. Provided, always, That the said islands, 
 or any premises herein mentioned, or by these presents in 
 tended, or meant to be conveyed, be not actually possessed 
 or inhabited by any other Christian Prince or State; nor be 
 
208 THE POLITICAL AND ECONOMIC 
 
 within the bounds, limits, or territories, of the northern col 
 ony, heretofore by us granted, to be planted by divers of our 
 loving subjects in the north part of Virginia. 
 
 On the 1 5th day of July, 1624, James I. granted a com 
 mission for the government of Virginia, in which it is al 
 leged that the charters to the Treasurer and Company of 
 Adventurers and Planters of the city of London, for the first 
 colony of Virginia, had been avoided upon a quo warranto 
 brought, and a legal and judicial proceeding therein by due 
 course of law. 
 
 On the 2Oth day of August, 1624, James granted another 
 commission for the government of Virginia, in which it is 
 alleged " Whereupon we, entering into mature and deliberate 
 consideration of the premises, did, by the advice of our Lords 
 of the Privy Council, resolve, by altering the charters of the 
 said company, as to the point of government, wherein the 
 same might be found defective, to settle such a course as 
 might best secure the safety of the people there, and cause 
 the said plantation to flourish; and, yet, with the preserva 
 tion of the interests of every planter and adventurer, so far 
 north as their present interests shall not prejudice the public 
 plantations; but because the said Treasurer and Company did 
 not submit their charters to be reformed, our proceedings 
 therein were stayed for a time, until, upon quo warranto 
 brought, and a legal and judicial proceeding therein, by due 
 course of law, the said charters were, and now are, and stand 
 avoided." 
 
 On the 1 3th of May, 1625, Charles I. by his proclamation, 
 after alleging that the letters patent, to the colony of Virginia, 
 had been questioned in a legal course, and thereupon judi 
 cially repealed, and judged to be void, declares that the gov 
 ernment of the colony of Virginia, shall immediately depend 
 on himself, and not be committed to any company or cor 
 poration. 
 
 From this time Virginia was considered to be a royal Gov 
 ernment, and it appears that the Kings of England, from time 
 to time, granted commissions for the government of the 
 same. 
 
 The right of making grants of land was vested in and 
 solely exercised by the Crown. 
 
 The Colonies of Maryland, North and South Carolina, 
 
DOCTRINES OF JOHN MARSHALL 209 
 
 Georgia, and part of Pennsylvania, were erected by the Crown, 
 within the chartered limits of the first colony of Virginia. 
 
 When the King of France had dominions in North Amer 
 ica, the land in question was included in the province of 
 Louisiana, but no part of it was actually settled by any of his 
 subjects. After the conquest of the French possessions in 
 North America by Great Britain, this tract was ceded to the 
 King of Great Britain, by the treaty of Paris, in 1763. 
 
 In the year 1774, the Parliament of Great Britain passed 
 an act, declaring and enacting " That all the territories, is 
 lands, and countries, in North America, belonging to the 
 Crown of Great Britain, bounded on the south by a line from 
 the bay of Chaluers, along the high lands which divide the 
 rivers that empty themselves into the river St. Lawrence, from 
 those that fall into the sea, to a point in forty-five degrees of 
 north latitude on the eastern bank of the river Connecticut, 
 keeping the same latitude directly west, through the lake 
 Champlain, until in the same latitude it meets the river St. 
 Lawrence; from thence, up the eastern branch of said river to 
 the lake Ontario ; thence through the lake Ontario and the river 
 commonly called Niagara; and thence, along by the eastern 
 and southwestern bank of lake Erie, following the bank until 
 the same shall be intersected by the northern boundary, granted 
 by the charter of the province of Pennsylvania, in case the 
 same shall so be intersected; and from thence, along the said 
 northern and western boundaries of said province, until the 
 said western boundary strike the Ohio. But in case the said 
 bank of the said lake shall not be found to be so intersected, 
 then, following the said bank, until it shall arrive at the point 
 of the said bank, which shall be nearest to the northwestern 
 angle of the said province of Pennsylvania! and thence by a 
 right line to the said northwestern angle of said province; 
 and thence, along the western boundary of said province, un 
 til it shall strike the river Ohio, and along the bank of the 
 said river, westward, to the banks of the Mississippi ; and 
 northward to the southern boundary of the territory granted 
 to the Merchants, adventurers of England, trading to Hud 
 son s Bay; and, also, all such territories, islands, and coun 
 tries, which have, since the loth of February, 1763, been 
 made part of the government of Newfoundland, be, and they 
 are hereby, during His Majesty s pleasure, annexed to and 
 
210 THE POLITICAL AND ECONOMIC 
 
 made part and parcel of the province of Quebec, as created 
 and established by the said royal proclamation of the 7th of 
 October, 1763. 
 
 " Provided, always, That nothing herein contained rela 
 tive to the boundary of the province of Quebec shall in any 
 wise affect the boundaries of any other colony. 
 
 " Provided, always, and be it enacted, That nothing in this 
 act contained shall extend, or be construed to extend, to make 
 void, or to vary, or alter any right, title, or possession de 
 rived under any grant, conveyance, or otherwise howsoever 
 of, or to any lands within the said province or provinces 
 thereto adjoining; but that the same shall be in force and have 
 effect as if this act had never been made." 
 
 In the year 1620, on the 3d of November, King James gave 
 a charter to the second colony of Virginia : after reciting the 
 grants made to the first colony of Virginia, and stating an 
 application from the second colony for a further enlarge 
 ment of priviledges, he proceeded to declare " that the tract 
 of land, in America, between the fortieth and forty-eighth de 
 grees of north latitude, from sea to sea, should be called New 
 England; and for the planting and governing the same, he 
 incorporated a council at Plymouth, in the county of Devon, 
 and granted to them and their successors," all that part of 
 America, lying and being in breadth, from forty degrees of 
 northerly latitude, from the equinoctial line, to forty-eight de 
 grees of said northerly latitude inclusively, and in length 
 of, and within all the said breadth aforesaid, throughout all 
 the main lands from sea to sea, together with all the firm lands, 
 &c. upon the main, within the said islands and seas adjoining. 
 Provided, the said islands, or any of the premises before men 
 tioned, and intended by said charter to be granted, be not 
 actually possessed or inhabited by any Christian Prince or 
 State, nor be within the bounds, limits, or territories of the 
 Southern colony, granted to be planted in the south part. King 
 James, by said charter, commanded and authorized said council 
 at Plymouth, or their successors, or the major part of them to 
 distribute and assign such portions of land to adventurers, &c. 
 as they should think proper. 
 
 In the year 1628, 4th March, the council of Plymouth, pur 
 suant to the authority vested in them by their charter, granted 
 to Sir Henry Roswell, and others, a tract of land called Massa- 
 
DOCTRINES OF JOHN MARSHALL 211 
 
 chusetts : and King Charles I. on the 4th of March, 1629, con 
 firmed the sale, and granted them a charter. After reciting the 
 description of the grant to the council of Plymouth, and their 
 grant to Sir Henry Roswell, and others, he grants and confirms 
 to them, Cl all that part of New England in America, which 
 lies and extends between a great river there commonly called 
 Morromack river, alias Merrimack river, and a certain other 
 river there called Charles river, being in the bottoms of a cer 
 tain bay, there called Massachusetts, alias Mattachusetts, alias 
 Massactusetts bay; and also all and singular those lands and 
 hereditaments whatsoever, lying within the space of three Eng 
 lish miles, on the south part of the said river, called Charles 
 river, or of any or every part thereof ; and also all and singular, 
 the lands and hereditaments whatsoever, lying and being within 
 the space of three English miles to the southward of the 
 southernmost parts of the said bay, called Massachusetts, alias 
 Mattachusetts, alias Massachusetts bay; and also all those 
 lands and hereditaments whatsoever, which lie and be, within 
 the space of three English miles to the northward of said 
 river, called Morromack, alias Merrimack; or to the north 
 ward of any and every part thereof; and all lands and heredi 
 taments whatsoever, lying within the limits aforesaid, north 
 and south, in latitude and in breadth, and in length and longi 
 tude of, and within all the breadth aforesaid, throughout the 
 mainlands there, from the Atlantic and Western sea and ocean 
 on the east part to the South sea on the west part, with a 
 proviso not to extend to lands possessed by a Christian Prince, 
 or within the limits of the southern colony." 
 
 In the year 1631, on the igth of March, the Earl of War 
 wick granted to Lord Say and Seal, and others, all that part of 
 New England in America which lies and extends itself from a 
 river there called Narraganset river, the space of forty leagues, 
 upon a straight line near the sea shore, towards the southwest, 
 west and by south or west as the coast lieth towards Virginia, 
 accounting three English miles to the league, and also all and 
 singular the lands and hereditaments whatsoever, lying and 
 being within the lands aforesaid, north and south, in latitude 
 and breadth, and in length and longitude of, and within all the 
 breadth aforesaid, throughout the main lands there, from 
 the Western ocean to the South sea, &c. and also all the islands, 
 lying in America, aforesaid in said seas, or either of them, on 
 
212 THE POLITICAL AND ECONOMIC 
 
 the western or eastern coasts, &c. The territory aforesaid 
 having been in the year preceding by the council of Plymouth 
 granted to said Earl of Warwick. 
 
 In 1635, the 7th of June, the council of Plymouth, after hav 
 ing made sundry other grants, surrendered their charter to the 
 Crown. 
 
 In the year 1635, Lord Say and Seal, and other associates, 
 appointed John Winthrop their governor and agent, to enter 
 upon and take possession of their territory, which he accord 
 ingly did, and began a settlement near the mouth of Connecti 
 cut river. About the same time, a number of English colonists 
 emigrated from the Massachusetts to Connecticut river, and 
 after having found themselves to be without the patent of that 
 colony, formed into a political association by the name of the 
 Colony of Connecticut, and purchased of Lord Say and Seal, 
 and others, their grant from the Earl of Warwick, made in 
 1631 ; and in 1661 petitioned King Charles the II. setting forth 
 their colonization, their adoption of a voluntary form of Gov 
 ernment, their grant from Lord Say and Seal, and others, and 
 their acquisition by purchase and conquest, and praying him 
 to give them a charter of Government, agreeably to the system 
 they had adopted with power equal to those conferred on Mas 
 sachusetts, or the lords and gentlemen whose jurisdiction right 
 they had purchased, and to confirm the grant or patent which 
 they had obtained as aforesaid of the assigns of the Plymouth 
 council, according to the tenor of a draft or instrument, which 
 they say was ready to be tendered at his gracious order. 
 
 King Charles II. referring to the facts stated in the petition 
 aforesaid, granted a charter, dated the 23d of April 1662, in 
 which he constituted and declared John Winthrop and others 
 his associates, a body corporate and politic, by the name of the 
 Governor and Company of the English Colony of Connecticut 
 in New England in America, with privileges and powers of gov 
 ernment, and granted and confirmed to the said Governor and 
 company and their successors all that part of his dominions in 
 New England in America, bounded on the east by Narraganset 
 river, commonly called Narraganset bay, where the said river 
 falls into the sea; and on the north by the line of Massachu 
 setts plantation, and on the south by the sea, and in longitude as 
 the line of Massachusetts colony, running from east to west, 
 that is to say, from the said Narraganset bay on the east, to the 
 
DOCTRINES OF JOHN MARSHALL 213 
 
 South sea, on the west, with the islands thereto adjoining; 
 (which is the present charter of Connecticut.) 
 
 On the 23d of April, 1664, King Charles addressed a letter to 
 the Governor and Company of Connecticut, in which, among 
 other things, he speaks of having renewed their charter. 
 
 On the 1 2th of March, 1664, Charles II. granted to James, 
 Duke of York, " all that part of the main land in New England, 
 beginning at a certain place called and known by the name of 
 St. Croix, next adjoining to New Scotland in America, and 
 from thence extending along the sea coast, unto a place called 
 Pennique, or Pennequid, and so up the river thereof unto the 
 furthermost head of the same, as it tendeth northward, and ex 
 tending from thence unto the river Kennebequie, and upwards 
 by the shortest course to the river called Canada, northward; 
 and also all that island or islands, called by the several name 
 or names of Mattawacks, or Long Island, situate, lying, and 
 being towards the west of Cape Cod and the Narragansets, 
 abutting on the main lands, between the two rivers there called 
 and known by the names of Connecticut, and Hudson s river, 
 together also with the said river called Hudson s river, 
 and all the lands from the west side of Connecticut river to the 
 east side of Delaware bay, and all the several islands, &c. 
 
 As the charter to the Duke of York covered part of the 
 lands included in the charter of Connecticut, and as a part 
 of the country had been settled by Christian nations prior to the 
 Charter of Connecticut, for which an exception had been made 
 in the charter to the council of Plymouth, though not in that 
 to Connecticut ; a dispute arose between the Duke of York and 
 the people of Connecticut, respecting the bounds of their re 
 spective grants. King Charles II. having appointed Richard 
 Nichols, and others, commissioners to visit the New England 
 colonies, with power to hear and determine all complaints and 
 appeals, and proceed in all things for providing for and settling 
 the peace of said country. 
 
 On the 1 3th of October, 1664, the General Assembly of the 
 colony of Connecticut appointed agents to wait on said commis- 
 Isioners, which appointment was expressed in the following 
 I terms, to wit: Mr. Allen, &c. are desired to accompany the 
 I Governor to New York to congratulate His Majesty s honor 
 able commissioners, and if an opportunity offers itself, that they 
 lean issue the bounds between the Duke s patent and ours (so as 
 
2i 4 THE POLITICAL AND ECONOMIC 
 
 in their judgment may be for the satisfaction of the court) they 
 are empowered to attend to the same, &c. Said commissioners 
 undertook the settlement of said bounds, and on the 3Oth of 
 November, 1664, determined as follows: 
 
 " By virtue of His Majesty s commission, we have heard the 
 difference about the bounds of the patent granted to the Duke 
 of York, and the colony of Connecticut, and having considered 
 the same, &c. we do declare, and order, the southern bound of 
 His Majesty s colony is the sea, and that Long Island is to be 
 under the government of His Royal Highness the Duke of 
 York, as is expressed by plain words in said charters respec 
 tively. And also by virtue of His Majesty s commission, and 
 by consent of both the Governors and gentlemen above named, 
 we do also order and declare that the creek or river which 
 is called Monoromock, which is reputed to be about twelve 
 miles to the east of Westchester and a line to be drawn from 
 the east point or side where the fresh water falls into the 
 salt, at high-water mark, north northwest to the line of the 
 Massachusetts, be the western bound of said colony of Con 
 necticut, and all plantations lying westward of that creek 
 and line so drawn shall be under His Royal Highness s govern 
 ment ; and all plantations lying eastward of that creek and line 
 to be under the government of Connecticut." 
 
 To this the commissioners from Connecticut subscribed 
 in the following manner, viz: 
 
 " We the underwritten, on behalf of the colony of Con 
 necticut, have assented unto the determination of His Ma 
 jesty s commissioners in relation to the bounds and limits 
 of His Royal Highness the Duke s patent and the patent 
 of Connecticut." 
 
 This was a settlement of boundary between the interfering 
 charter of Connecticut and that of the Duke of York, as it 
 respected the eastern extent of the latter. 
 
 New York being, in June 1673, recovered by the Dutch, and 
 their Government revived, was, in 1674, ceded on a treaty of 
 peace. The Duke obtained a renewal of his patent, and 
 claimed a re-settlement of the same, which was finally ef 
 fected in 1733, when Biram river, the present line, was es 
 tablished. 
 
 Charles the second, on the 4th day of March 1681, granted 
 to William Penn, the first proprietary and Governor of Penn- 
 
DOCTRINES OF JOHN MARSHALL 215 
 
 sylvania, all that tract or part of land in America, with the 
 islands therein contained, as the same is bounded, on the 
 east by the Delaware river, from twelve miles distance, north 
 ward of Newcastle town, unto the three-and-fortieth degree 
 of northern latitude, if said river doth extend so far north 
 ward; but if the said river shall not extend so far northward, 
 then, by the said river so far as it doth extend, and from the 
 head of the said river, the eastern bounds are to be determined 
 by a meridian line, to be drawn from the head of said river, 
 unto the said forty-third degree; the said land to extend 
 westward five degrees in longitude, to be computed from the 
 said eastern bounds; and the said lands to be bounded on 
 the north by the beginning of the three-and-fortieth degree 
 of northern latitude; and on the south by a circle drawn at 
 twelve miles distance from Newcastle, northward and west 
 ward, unto the beginning of the fortieth degree of northern 
 latitude; and then by a straight line, westward, to the limits 
 of longitude above mentioned. 
 
 On the 27th of November, 1779, the Legislature of Penn 
 sylvania vested the estate of the proprietaries in the Common 
 wealth. 
 
 The charter of Pennsylvania comprehended a part of the 
 land included in the charter of Connecticut, viz : between the 
 forty-first and forty-second degrees of north latitude, in con 
 sequence of which a dispute arose respecting the right of 
 soil and jurisdiction. 
 
 This dispute came to a final decision before a court of com 
 missioners appointed pursuant to the articles of confedera 
 tion, on the 3Oth day of December, 1782, when it was 
 determined that the State of Connecticut had no right to the 
 lands included in the charter of Pennsylvania; and that the 
 State of Pennsylvania had the right of jurisdiction and pre 
 emption. 
 
 The State of Connecticut acquiesced in the decision afore 
 said, respecting the lands claimed by Pennsylvania, and the 
 court of commissioners having final jurisdiction, the claim 
 of Connecticut respecting both soil and jurisdiction is con 
 clusively settled. But Connecticut did not abandon her claim 
 to lands west of Pennsylvania, and at a General Assembly, 
 holden at New Haven on the second Thursday of October, 
 1783, the following act was passed, viz. " Whereas this 
 
216 THE POLITICAL AND ECONOMIC 
 
 State has the undoubted and exclusive right of jurisdiction 
 and pre-emption to all the lajids lying west of the western 
 limits of the State of Pennsylvania, and east of the river 
 Mississippi, and extending throughout from the latitude 41 
 to latitude 42 and 2 north, by virtue of the charter granted 
 by King Charles the Second to the late colony, now State of 
 Connecticut, bearing date the 23d day of April, A.D. 1662, 
 which claim and title to make known, for the information of 
 all, to the end that they may conform themselves thereto. 
 
 " Resolved, That his excellency the Governor be desired 
 to issue his proclamation, declaring and asserting the right of 
 this State to all the lands within the limits aforesaid; and 
 strictly forbidding all persons to enter or settle thereon, with 
 out special license and authority first obtained from the Gen 
 eral Assembly of this State." 
 
 Pursuant to this resolution, Governor Trumbull issued a 
 proclamation, bearing date the I5th day of November, 1783, 
 making known the determination of the State to maintain 
 their claim to said territory, and forbidding all persons to 
 enter thereon, or settle within the limits pf the same. 
 
 On the 29th of April, 1784, Congress adopted the following 
 resolutions : 
 
 Congress, by their resolution of September 6th, 1780, having 
 thought it advisable to press upon the States having claims 
 to the Western country a liberal surrender of a portion of 
 their territorial claims ; by that of the loth of October in the 
 same year, having fixed conditions to which the Union should 
 be bound on receiving such cessions; and having again pro 
 posed the same subject to those States in their address of 
 April the i8th, 1783, wherein, stating the national debt, and 
 expressing their reliance for its discharge, on the prospect of 
 vacant territory in aid of other resources, they, for that pur 
 pose as well as to obviate disagreeable controversies and con 
 fusions, included in the same recommendations a renewal of 
 those of September 6th, and of October the loth, 1780, which 
 several recommendations have not yet been fully complied 
 with. 
 
 Resolved, That the same subject be again presented to the 
 said States ; that they be urged to consider, that the war being 
 now brought to a happy termination, by the personal services 
 of our soldiers, the supplies of property by our citizens, and 
 
DOCTRINES OF JOHN MARSHALL 217 
 
 loans of money from them as well as foreigners ; these several 
 creditors have a right to expect that funds will be provided, 
 on which they may rely for indemnification ; that Congress 
 still consider vacant territory as an important resource; and 
 that, therefore, said States be earnestly pressed by immediate 
 and liberal cessions to forward these necessary ends, and to 
 promote the harmony of the Union. 
 
 The State of Connecticut, prior to the decree of Trenton, 
 offered to make a cession of Western territory, but under 
 such restrictions that Congress refused to accept the same. 
 In consequence of the above recommendation of Congress, the 
 Legislature of Connecticut resumed the consideration of a 
 cession of their Western territory: and, at a General Assembly 
 of the State, on the second Thursday of May, 1786, passed 
 the following act : 
 
 " Be it enacted by the Governor, Council, and Representa 
 tives, in general court assembled, and by the authority of the 
 same, That the delegates of this State, or any two of them, 
 who shall be attending the Congress of the United States, be, 
 and they are hereby directed, authorized, and fully empowered, 
 in the name and behalf of this State, to make, execute, and de 
 liver, under their hands and seals an ample deed of release 
 and cession of all the right, title, interest, jurisdiction, and 
 claim of the State of Connecticut, to certain Western lands, 
 beginning at the completion of the forty-first degree of north 
 latitude, one hundred and twenty miles west of the western 
 boundary line of the Commonwealth of Pennsylvania, as now 
 claimed by said Commonwealth; and from thence by a line 
 to be drawn north parallel to, and one hundred and twenty 
 miles west of the said west line of Pennsylvania, and to con 
 tinue north until it comes to 42 and 2 north latitude: where 
 by all the right, title, interest, jurisdiction, and claim of the 
 State of Connecticut to the lands lying west of the said line, 
 to be drawn, as aforementioned, one hundred and twenty miles 
 west of the western boundary line of the Commonwealth of 
 Pennsylvania, as now claimed by said Commonwealth, shall 
 be included, released, and ceded to the United States in Con 
 gress assembled, for the common use and benefit of said 
 States, Connecticut inclusive." 
 
 On the 26th of May, 1786, Congress resolved, " that Con 
 gress, in behalf of the United States, are ready to accept 
 
218 THE POLITICAL AND ECONOMIC 
 
 all the right, title, interest, jurisdiction, and claim of the 
 State of Connecticut to certain western lands, beginning at 
 the cempletion of the forty-first degree of north latitude, one 
 hundred and twenty miles west of the western boundary line 
 of the Commonwealth of Pennsylvania, as now claimed by 
 said Commonwealth ; and from thence, by a line to be drawn 
 north parallel to, and one hundred and twenty miles west of 
 the said west line of Pennsylvania, and to continue north until 
 it comes to forty-two degrees two minutes north latitude, 
 whenever the delegates of Connecticut shall be furnished with 
 full powers, and shall execute a deed for that purpose." 
 
 On the 1 4th of September, 1786, the delegates from Con 
 necticut executed a deed of cession agreeably to the above 
 resolution, and it was resolved " that Congress accept the 
 said deed of cession, and that the same be recorded and en 
 rolled among the acts of the United States in Congress as 
 sembled." 
 
 The cession from Connecticut was accepted by Congress 
 in the same manner and form as the cessions from Virginia, 
 New York, and Massachusetts. 
 
 The Legislature of Connecticut, on the second Thursday of 
 October, 1786, passed an act directing the survey of that 
 part of their western territory not ceded to Congress, lying 
 west of Pennsylvania, and east of the river Cayahoga, to which 
 the Indian right had been extinguished; and by the same act, 
 opened a land office for the sale thereof. Under this act, a 
 part of said tract was sold. 
 
 The Legislature of Connecticut, in 1792, granted five hun 
 dred thousand acres of said territory, being the west part 
 thereof, to certain citizens of the State, as a compensation 
 for property burned and destroyed in the towns of New Lon-^ 
 don, New Haven, Fairfield, and Norwalk, by the British 
 troops in the war between the United States of America and 
 Great Britain. Many transfers of parts of this land have been 
 made for valuable considerations. 
 
 In May 1795, the Legislature of Connecticut passed a 
 resolve in the words following: 
 
 " Resolved by the Assembly, That a committee be appointed 
 to receive any proposals that may be made by any person 
 or persons, whether inhabitants of the United States, or others, 
 for the purchase of the lands belonging to this State lying 
 
DOCTRINES OF JOHN MARSHALL 219 
 
 west of the west line of Pennsylvania, as claimed by said 
 State. And the said committee are hereby fully authorized 
 and empowered, in the name and behalf of this State, to 
 negotiate with any such person or persons, on the subject of 
 any such proposals, and also to form and complete any con 
 tract or contracts for the sale of the said lands, and to make 
 and execute, under their hands and seals, to the purchaser or 
 purchasers, a deed or deeds duly authenticated, quitting, in 
 behalf of this State, all right, title, and interest, juridical and 
 territorial, in and to said lands to him or them, and to his 
 and their heirs forever. 
 
 " That before the executing of such deed or deeds, the 
 purchaser or purchasers shall give their personal note or bond, 
 payable to the Treasurer of this State, for the purchase money, 
 carrying an interest of six per centum per annum, payable an 
 nually, to commence from the date thereof, or from some future 
 period, not exceeding two years from the date, as circum 
 stances, in the opinion of the committee, may require, and as 
 may be agreed on between them and the said purchaser or pur 
 chasers, with good and sufficient sureties, inhabitants of this 
 State ; or with a sufficient deposit of bank stock, or other stock 
 of the United States, or the particular States; which note or 
 bond shall be taken, payable at a period not more remote than 
 five years from the date, or if by annual installments, so that 
 the last installment be made payable within ten years from the 
 date, either in specie, or six per cent., three per cent., or 
 deferred stock of the United States, at the discretion of the 
 committee. 
 
 " That if the said committee shall find that it will be most 
 beneficial to the State or its citizens, to form several contracts 
 for the sale of the said lands, they shall not consumate any 
 of the said contracts apart by themselves, while the others 
 lie in a train of negotiations only; but all the contracts, which, 
 taken together, shall comprise the whole of the quantity of the 
 said lands, shall be consumated together, and the purchasers 
 shall hold their respective parts, or proportions, as tenants 
 in common of the whole tract, or territory, and not in sever 
 ally. 
 
 That the said committee, in whatever manner they shall 
 find it best to sell the said lands, shall, in no case, be at liberty 
 to sell the whole quantity for a principal sum less than one 
 
220 THE POLITICAL AND ECONOMIC 
 
 million of dollars in specie, with interest at six per cent, per 
 annum from the time of such sale." 
 
 The Legislature, at the same time, appointed a committee 
 to sell said lands, who advertised the same in various news 
 papers in the United States, and particularly in the Gazette 
 of the United States, published in Philadelphia. 
 
 Said committee sold said lands to sundry citizens of Con 
 necticut, and of other States, for the sum of one million two 
 hundred thousand dollars; and on the Qth day of September, 
 1795, executed to the several purchasers, deeds quitting to 
 them and their heirs forever, all right, title, and interest jurid 
 ical and territorial of the State of Connecticut, to lands be 
 longing to said State, lying west of the west line of 
 Pennsylvania, as claimed by said State. 
 
 The Legislature of Connecticut have appropriated the money 
 arising on the sale of said lands, for the support of schools, 
 and have pledged the annual interest as a perpetual fund for 
 that purpose. The proprietors have paid the principal part of 
 two years interest to the State, making about the sum of one 
 hundred thousand dollars. 
 
 The purchasers have surveyed into townships of five miles 
 square, the whole of said tract lying east of the river Caya- 
 hoga, and to which the Indian right has been extinguished; 
 they have made divisions thereof according to their respective 
 proportions ; commenced settlements in thirty-five of said town 
 ships ; and there are actually settled therein about one thousand 
 inhabitants. A number of mills have been built, and roads 
 cut in various directions through said territory, to the extent 
 of about seven hundred miles; numerous sales and transfers 
 of the lands have been made, and the proprietors, in addition 
 to the payments of interest aforesaid, have already expended 
 about the sum of eighty thousand dollars. 
 
 While the State of Connecticut was making a disposition 
 of said territory, the following acts took place in the Govern 
 ment of the United States. 
 
 In the report of the Secretary of State, respecting the 
 quantity and situation of the lands not claimed by the Indians, 
 nor granted to, nor claimed by any of the citizens of the 
 United States within the territory ceded to the United States 
 by the State of North Carolina, and within the territory of 
 
DOCTRINES OF JOHN MARSHALL 221 
 
 the United States northwest of the river Ohio, are the follow 
 ing clauses : 
 
 Under the head of lands reserved by States in their deeds 
 of cession, it is said, " the tract of country presents itself from 
 the completion of the forty-first degree to forty-second degree 
 two minutes of North latitude, and extending to the Pennsyl 
 vania line before mentioned, one hundred and twenty miles 
 westward, not mentioned in the deed of Connecticut, while all 
 the country westward thereof was mentioned to be ceded ; 
 about two and a half millions of acres of this may, perhaps, 
 be without the Indian lines before mentioned." 
 
 In the act of Congress passed May i8th, 1796, entitled " An 
 act providing for the sale of the lands of the United States 
 northwest of the river Ohio, and above the mouth of the 
 Kentucky river," is the following section : 
 
 Sec. 4. Be it further enacted, That whenever seven ranges 
 of townships shall have been surveyed below the Great Miami, 
 or between the Scioto river and the Ohio company s purchase, 
 or between the southern boundary of the Connecticut claims, 
 and the ranges already laid off, beginning upon the Ohio 
 river, and extending westwardly; and the plats thereof made 
 and transmitted, in conformity to the provisions of this act, 
 the said section of the six hundred and forty acres (excluding 
 those hereby reserved) shall be offered for sale at public 
 vendue, under the direction of the Governor, or Secretary of 
 the Western Territory, and the Surveyor General ; such of 
 them as lie below the Great Miami, shall be sold at Cincinnati ; 
 those of them that lie between the Scioto and the Ohio Com 
 pany s purchase, at Pittsburg; and those between the Connecti 
 cut claim and seven ranges at Pittsburg, &c." 
 
 On the 2ist of January, 1799, Mr. Read, from a committee 
 to whom was referred a bill to accept a cession from Connecti 
 cut of the Western Reserve, made a report to the Senate, 
 which was as follows : 
 
 At a meeting of commissioners from sundry of the then 
 colonies at Albany, on Tuesday, the 9th of July, it was, among 
 other things, agreed and resolved, as follows : 
 
 That His Majesty s title to the northern continent of Amer 
 ica appears to be founded on the discovery thereof first made, 
 
222 THE POLITICAL AND ECONOMIC 
 
 and the possession thereof first taken in 1497, under a commis 
 sion from Henry VII. of England, to Sebastian Cabot. That 
 the French have possessed themselves of several parts of this 
 continent, which, by treaties, have been ceded and confirmed to 
 them. 
 
 That the right of the English to the whole seacoast from 
 Georgia on the south, to the river St. Lawrence on the north, 
 excepting the island of Cape Breton, and the islands in the 
 Bay of St. Lawrence, remains indisputable. 
 
 That all the lands or countries westward from the Atlantic 
 Ocean to the South Sea, between 48 and 34 north latitude, 
 was expressly included in the grant of King Charles I. to divers 
 of his subjects, so long since as the year 1606, and afterwards 
 confirmed in 1620, and under this grant the colony of Virginia 
 claims extent as far west as the South Sea; and the ancient 
 colonies of the Massachusetts Bay and Connecticut were by 
 their respective charters made to extend to the said South 
 Sea; and so that not only the right of the seacoast, but to all 
 the inland countries from sea to sea, has, at all times, been 
 asserted by the Crown of England. 
 
 In 1754, some settlements were made from Connecticut on 
 lands on the Susquehanna, about Wyoming, within the char 
 tered limits of Pennsylvania, and also within the chartered 
 limits claimed by Connecticut, which produced a letter from the 
 Governor of Connecticut to the Governor of Pennsylvania, of 
 which the following is an extract : 
 
 " WINDSOR, March 13, 1754. 
 
 There being now no unimpropriated lands with us, some 
 of our inhabitants, hearing of this land at Susquehanna, and 
 that it was north of the grant made to Mr. Penn and that to 
 Virginia, are upon a design of making a purchase from the 
 Indians, and hope to obtain a grant of it from the Crown. 
 But Mr. Armstrong informs me that this land is certainly 
 within Mr. Penn s grant. If so, I don t suppose our people 
 had any purpose to quarrel with Pennsylvania. Indeed, I 
 don t know the mind of every private man, but I never heard 
 our leading men express themselves so inclined." 
 
 On the same day, Lieutenant Governor Fitch wrote from 
 Hartford a letter on the same subject, of which the following 
 is an extract: 
 
DOCTRINES OF JOHN MARSHALL 223 
 
 " I do well approve of the notice you take of the attempt 
 some of the people of this colony are making, and the concern 
 you manifest for the general peace, &c. I know nothing of 
 any thing done by the Government to countenance such a pro 
 cedure as you intimate, and, I conclude, is going on among 
 some of our people. I shall, in all proper ways, use my in 
 terest to prevent every thing that may tend to prejudice the 
 general good of these governments, and am inclined to believe 
 that this wild scheme of our people will come to nothing, 
 though I can t certainly say." 
 
 At a General Assembly for Connecticut, holden in May, 1755, 
 the Susquehanna Company, as were styled those who were 
 seating lands on that river west of New York, and within the 
 boundaries claimed by Pennsylvania and Connecticut, pre 
 sented a petition praying the assent of the Legislature to a 
 petition to His Majesty for a new colony within the chartered 
 limits of Connecticut, and describing the lands lying west of 
 New York; whereupon, the Assembly of Connecticut, after 
 reciting the said petition, came to the following resolution : 
 
 Resolved, by this Assembly, That they are of opinion that 
 the peaceably and orderly erecting and carrying on some new 
 and well regulated colony or plantation on the lands above 
 mentioned would tend to fix and secure said Indian nations 
 in allegiance to His Majesty and friendship with his subjects; 
 and accordingly hereby manifest their ready acquiescence 
 therein, if it should be His Majesty s royal pleasure to grant 
 said land to said petitioners, and thereon erect and settle a 
 new colony, in such form and under such regulations as might 
 be consistent with his royal wisdom; and also take leave 
 humbly to recommend the said petitioners to his royal favor in 
 the premises. 
 
 On the 3 ist of August, 1779, an agreement was concluded 
 between commissioners duly appointed for that purpose by 
 the States of Virginia and Pennsylvania, respectively, whereby 
 it was agreed " That the line commonly called Mason s and 
 Dixon s line be extended due west five degrees of longitude 
 to be computed from the river Delaware, for the southern 
 boundary of Pennsylvania ; and that a meridian drawn from the 
 western extremity thereof to the northern limits of the said 
 States, respectively, be the western boundary of Pennsylvania 
 forever; " which agreement was ratified and finally confirmed 
 
224 DOCTRINES OF JOHN MARSHALL 
 
 by the Legislature of Pennsylvania, by resolution bearing date 
 the 3d day of September, 1780, and by the State of Virginia 
 on the day of 178 See Journal of Pennsylvania As 
 sembly, vol. i page 519. 
 
 On the 6th day of June, 1788, Congress directed the geog 
 rapher of the United States to ascertain the boundary line be 
 tween the United States and the States of New York and Mass 
 achusetts, agreeably to the deeds of cession of the said States, 
 and also directed that the meridian line between lake Erie and 
 the State of Pennsylvania being run, the land lying west of said 
 line, and between the State of Pennsylvania and lake Erie, 
 should be surveyed, and return thereof made to the Board 
 of Treasury, who were authorized to make sale thereof. 
 
 The said land having been sold, in conformity with the 
 above mentioned resolution, to the State of Pennsylvania, 
 Congress, on the 3d day of September, 1788, passed a resolu 
 tion relinquishing and transferring all the right, title, and 
 claim, of the United States to the government and jurisdiction 
 of the said tract of land, to the State of Pennsylvania forever. 
 
 As the purchasers of the land commonly called the Connecti 
 cut Reserve hold their title under the State of Connecticut, 
 they cannot submit to the Government established by the United 
 States in the Northwestern territory, without endangering 
 their titles, and the jurisdiction of Connecticut could not be 
 extended over them without much inconvenience. Finding 
 themselves in this situation, they have applied to the Legisla 
 ture of Connecticut to cede the jurisdiction of the said territory 
 of the United States. In pursuance of such application, the 
 Legislature of Connecticut, in the month of October, 1797, 
 passed an act authorizing the Senators of the said State in 
 Congress to execute a deed of release in behalf of said State 
 to the United States of the jurisdiction of said territory. 
 
 The committee are of opinion that the cession of juris 
 diction offered by the State of Connecticut ought to be ac 
 cepted by the United States, on the terms and conditions speci 
 fied in the bill which accompanies this report. 1 
 
 1 The above letter is printed in " The American State Papers," Class 
 VIII, Public Lands, Vol. I. Washington: Published by Gales and Sea- 
 ton, 1832. 
 
CHAPTER V 
 
 THE SPEECHES OF JOHN MARSHALL 
 
 JOHN MARSHALL was not a great speechmaker ; in his time 
 there were many great orators such as Patrick Henry, Daniel 
 Webster, and many others, but he did not speak unless he was 
 almost pressed to do so. However, when he did speak it was 
 with great eloquence, as all records of the Conventions at 
 which he spoke testify, and his speech on the death of Wash 
 ington shows that he was filled with a great emotion that he 
 was capable of expressing. 
 
 In one of Marshall s letters you will notice that he said he 
 never wished to appear in print if he could help it. It seems 
 that the same rule might have been his in regard to oratory, 
 that he never wished to be heard on the public platform if he 
 could in some manner avoid it. 
 
 Webster and Henry never missed an opportunity to air their 
 views, and no doubt this is the case with every man who has 
 the oratorical habit, and who can find an appreciative au 
 dience. But Marshall s method was different; he believed in 
 doing his work in a silent way, and in this way he accomplished 
 a great deal, to the discomfiture of those who were opposed to 
 him. 
 
 SPEECH OF THE HONORABLE JOHN MARSHALL, 
 Delivered in the House of Representatives of the United States, on the 
 Resolutions of the Honorable Edward Livingston, relative to 
 Thomas Nash, alias Jonathan Robbins 
 
 The case is that Thomas Nash, having committed a murder 
 on board a British frigate, navigating the high seas under a 
 commission from his Britannic Majesty, had sought an asylum 
 within the United States, and on this case his delivery was de 
 manded by the minister of the King of Great Britain. 
 
 Mr. Marshall said : Believing as he did most seriously, 
 that in a government constituted like that of the United States, 
 much of the public happiness depended, not only on its being 
 rightly administered, but on the measures of administration be- 
 
 225 
 
226 THE POLITICAL AND ECONOMIC 
 
 ing rightly understood : on rescuing public opinion from those 
 numerous prejudices with which so many causes might com 
 bine to surround it : he could not but have been highly gratified 
 with the very eloquent, and what was still more valuable, the 
 very able, and very correct argument, which had been delivered 
 by the gentleman from Delaware [Mr. Bayard] against the 
 resolutions now under consideration. He had not expected 
 that the effect of this argument would have been universal, 
 but he had cherished the hope, and in this he had not been dis 
 appointed, that it would be very extensive. He did not flatter 
 himself with being able to shed much new light on the subject ; 
 but as the argument in opposition to the resolutions has been 
 assailed, with considerable ability, by gentlemen of great tal 
 ents, he trusted the house would not think the time misapplied 
 which would be devoted to the reestablishment of the princi 
 ples contained in that argument, and to the refutation of those 
 advanced in opposition to it. In endeavoring to do this, he 
 should notice the observation in support of the resolutions, not 
 in the precise order in which they were made, but as they ap 
 plied to the different points he deemed it necessary to main 
 tain, in order to demonstrate that the conduct of the executive 
 of the United States could not justly be charged with the er 
 rors imputed to it by the resolutions. 
 
 His first proposition, he said, was, that the case of Thomas 
 Nash, as stated to the President, was completely within the 
 twenty-seventh article of the treaty of amity, commerce, and 
 navigation, entered into between the United States of America 
 and Great Britain. 
 
 He read the article, and then observed : The casus foederis 
 of this article occurs, when a person, having committed murder 
 or forgery within the jurisdiction of one of the contracting 
 parties, and having sought asylum in the country of the other, 
 is charged with the crime, and his delivery demanded, on such 
 proof of his guilt as, according to the laws of the place where 
 he shall be found, would justify his apprehension and 
 commitment for trial, if the offense had there been commit 
 ted. 
 
 The case stated is, that Thomas Nash, having committed a 
 murder on board a British frigate, navigating the high seas 
 under a commission from His Britannic Majesty, had sought 
 an asylum within the United States, and on this case his de- 
 
DOCTRINES OF JOHN MARSHALL 227 
 
 livery was demanded by the Minister of the King of Great 
 Britain. 
 
 It is manifest that the case stated, if supported by proof, is 
 within the letter of the article, provided a murder committed 
 in a British frigate, on the high seas, be committed within the 
 jurisdiction of that nation. 
 
 That such a murder is within their jurisdiction, has been 
 fully shown by the gentleman from Delaware. The principle 
 is, that the jurisdiction of a nation extends to the whole of its 
 territory, and to its own citizens in every part of the world. 
 The laws of a nation are rightfully obligatory on its own citi 
 zens in every situation, where those laws are really extended to 
 them. This principle is founded on the nature of civil union. 
 It is supported everywhere by public opinion, and is recognized 
 by writers on the law of nations. Rutherforth, in his second 
 volume, p. 180, says: " The jurisdiction which a civil so 
 ciety has over the persons of its members, affects them im 
 mediately, whether they arejwithin its territories or not." 
 
 This general principle is especially true, and is particularly 
 recognized with respect to the fleets of a nation on the high 
 seas. To punish offenses committed in its fleet, is the practice 
 of every nation in the universe ; and consequently the opinion of 
 the world is, that a fleet at sea is within the jurisdiction of 
 the nation to which it belongs. Rutherforth Vol. II, p. 491, 
 says : " There can be no doubt about the jurisdiction of a na 
 tion over the persons which compose its fleets, when they are 
 out at sea, whether they are sailing upon it, or are stationed 
 in any particular part of it." 
 
 The gentleman from Pennsylvania [Mr. Gallatin], though 
 be has not directly controverted this doctrine, has sought to 
 weaken it by observing that the jurisdiction of a nation at sea 
 could not be complete even in its own vessels ; and in support of 
 this position, he urged the admitted practice of submitting to 
 search for contraband ; a practice not tolerated on land, within 
 the territory of a neutral power. The rule is as stated, but is 
 founded on a principle which does not affect the jurisdiction 
 of a nation over its citizens or subjects in its ships. The 
 principle is, that in the sea itself no nation has any jurisdiction. 
 All may equally exercise their rights, and consequently the 
 right of a belligerent power to prevent aid being given to his 
 enemy, is not restrained by any superior right of a neutral in 
 
228 THE POLITICAL AND ECONOMIC 
 
 the place. But if this argument possessed any force, it would 
 not apply to national ships of war, since the usage of nations 
 does not permit them to be searched. 
 
 According to the practice of the world, then, and the opin 
 ions of writers on the law of nations, the murder committed 
 on board a British frigate, navigating the high seas, was a 
 murder committed within the jurisdiction of the British na 
 tion. 
 
 Although such a murder is plainly within the letter of the 
 article, it has been contended not to be within its just construc 
 tion; because, at sea, all nations have a common jurisdiction, 
 and the article correctly construed, will not embrace a case of 
 concurrent jurisdiction. 
 
 It is deemed unnecessary to controvert this construction, 
 because the proposition, that the United States had no juris 
 diction over the murder committed by Thomas Nash, is be 
 lieved to be completely demonstrable. 
 
 It is not true that all nations have jurisdiction over all of 
 fenses committed at sea. On the contrary, no nation has any 
 jurisdiction at sea, but over its own citizens or vessels, or of 
 fenses against itself. This principle is laid down in 2 Ruth. 
 488, 491. 
 
 The American government has, on a very solemn occasion, 
 avowed the same principle. The first minister of the French 
 republic asserted and exercised powers of so extraordinary 
 a nature as unavoidably to produce a controversy with the 
 United States. The situation in which the government then 
 found itself was such as necessarily to occasion a very serious 
 and mature consideration of the opinions it should adopt. 
 Of consequence, the opinions then declared deserve great re 
 spect. In the case alluded to, Mr. Genet had asserted the right 
 of fitting out privateers in the American ports, and of manning 
 them with American citizens, in order to cruise against na 
 tions with whom America was at peace. In reasoning against 
 this extravagant claim, the then Secretary of State, in his letter 
 of the 1 7th of June, 1793, says: " For our citizens, then, to 
 commit murders and depredations on the members of nations at 
 peace with us, or to combine to do it, appeared to the executive 
 and to those whom they consulted, as much against the laws 
 of the land as to murder or rob, or combine to murder or rob, 
 its own citizens; and as much to require punishment, if done 
 
DOCTRINES OF JOHN MARSHALL 229 
 
 within their limits, where they have a territorial jurisdiction, 
 or on the high seas, where they have a personal jurisdiction, 
 that is to say, one which reaches their own citizens only; this 
 being an appropriate part of each nation, on an element where 
 all have a common jurisdiction." 
 
 The well considered opinion, then, of the American govern 
 ment on this subject is, that the jurisdiction of a nation at 
 sea is " personal," reaching its " own citizens only," and that 
 this is " the appropriate part of each nation " on that element. 
 
 This is precisely the opinion maintained by the opposers of 
 the resolutions. If the jurisdiction of America at sea be 
 personal, reaching its own citizens only; if this be its appro 
 priate part, then the jurisdiction of the nation cannot extend to 
 a murder committed by a British sailor, on board a British 
 frigate navigating the high seas, under a commission from His 
 Britannic Majesty. 
 
 As a further illustration of the principle contended for, 
 suppose a contract made at sea, and a suit instituted for the 
 recovery of money which might be due thereon. By the laws 
 of what nation would the contract be governed? The prin 
 ciple is general, that a personal contract follows the person, 
 but is governed by the law of the place where it is formed. By 
 what law, then, would such a contract be governed? If all 
 nations had jurisdiction over the place, then the laws of all 
 nations would equally influence the contract; but certainly no 
 man will hesitate to admit that such a contract ought to be 
 decided according to the laws of that nation to which the vessel 
 or contracting parties might belong. 
 
 Suppose a duel attended with death, in the fleet of a foreign 
 nation, or in any vessel which returned safe to port ; could it be 
 pretended that any government on earth, other than that to 
 which the fleet or vessel belonged, had jurisdiction in the 
 case ; or that the offender could be tried by the laws or tribunals 
 of any other nation whatever? 
 
 Suppose a private theft by one mariner from another, and 
 the vessel to perform its voyage and return in safety, would it 
 be contended that all nations have equal cognizance of the 
 crime, and are equally authorized to punish it ? 
 
 If there be this common jurisdiction at sea, why not punish 
 desertion from one belligerent power to another, or correspond 
 ence with the enemy, or any other crime which may be per- 
 
2 3 o THE POLITICAL AND ECONOMIC 
 
 petrated? A common jurisdiction over all offenses at sea, in 
 whatever vessel committed, would involve the power of punish 
 ing the offenses which have been stated. Yet all gentlemen 
 will disclaim this power. It follows, then, that no such com 
 mon jurisdiction exists. 
 
 In truth, the right of every nation to punish is limited, in its 
 nature, to offenses against the nation inflicting the punishment. 
 This principle is believed to be universally true. 
 
 It comprehends every possible violation of its laws on its 
 own territory, and it extends to violations committed elsewhere 
 by persons it has a right to bind. It extends also to general 
 piracy. 
 
 A pirate, under the law of nations, is an enemy of the human 
 race. Being the enemy of all, he is liable to be punished by 
 all. Any act which denotes this universal hostility is an act of 
 piracy. Not only an actual robbery therefore, but cruising on 
 the high seas without a commission, and with intent to rob, is 
 piracy. This is an offense against all and every nation, and 
 is therefore alike punishable by all. But an offense which in 
 its nature affects only a particular nation, is only punishable 
 by that nation. 
 
 It is by confounding general piracy with piracy by statute, 
 that indistinct ideas have been produced, respecting the power 
 to punish offenses committed on the high seas. 
 
 A statute may make any offense piracy, committed within 
 the jurisdiction of the nation passing the statute, and such 
 offense will be punishable by that nation. But piracy under 
 the law of nations, which alone is punishable by all nations, 
 can only consist in an act which is an offense against all. 
 No particular nation can increase or diminish the list of 
 offenses thus punishable. 
 
 It had been observed by his colleague (Mr. Nicholas), for 
 the purpose of showing that the distinction taken on this sub 
 ject by the gentleman from Delaware (Mr. Bayard) was inac 
 curate, that any vessel robbed on the high seas could be the 
 property only of a single nation, and being only an offense 
 against that nation, could be, on the principle taken by the 
 opposers of the resolutions, no offense against the law of na 
 tions; but in this his colleague had not accurately considered 
 the principle. As a man, who turns out to rob on the highway, 
 and forces from a stranger his purse with a pistol at his bosom, 
 
DOCTRINES OF JOHN MARSHALL 231 
 
 is not the particular enemy of that stranger ; but alike the enemy 
 of every man who carries a purse, so those who, without a com 
 mission, rob on the high seas, manifest a temper hostile to all 
 nations, and therefore become the enemies of all. The same 
 inducements which occasion the robbery of one vessel, exist to 
 occasion the robbery of others, and therefore the single offense 
 is an offense against the whole community of nations, manifests 
 a temper hostile to all, is the commencement of an attack on all, 
 and is consequently, of right, punishable by all. 
 
 His colleague had also contended, that all the offenses at sea, 
 punishable by the British statutes, from which the act of Con 
 gress was in a great degree copied, were piracies at common 
 law, or by the law of nations, and as murder is among these, 
 consequently murder was an act of piracy by the law of nations, 
 and therefore punishable by every nation. In support of this 
 position, he had cited i Hawk., P. C, 267, 271 ; 3 Inst., 112, 
 and i Woodeson, 140. 
 
 The amount of these cases is, that no new offense is made 
 piracy by the statutes; but that a different tribunal is created 
 for their trial, which is guided by a different rule from that 
 which governed previous to those statutes. Therefore, on an 
 indictment for piracy, it is still necessary to prove an offense 
 which was piracy before the statutes. He drew from these 
 authorities a very different conclusion from that which had 
 been drawn by his colleague. To show the correctness of his 
 conclusion, it was necessary to observe, that the statute did not, 
 indeed, change the nature of piracy, since it only transferred 
 the trial of the crime to a different tribunal, where different 
 rules of decision prevailed ; but having done this, other crimes 
 committed on the high seas, which were not piracy, were made 
 punishable by the same tribunal ; but certainly this municipal 
 regulation could not be considered as proving that those 
 offenses were, before, piracy by the law of nations. Mr. 
 Nicholas insisted that the law was not correctly stated ; where 
 upon Mr. Marshall called for 3 Inst. and read the Statute. 
 
 " All treasons, felonies, robberies, murders, and confeder 
 acies, committed in or upon the seas, &c., shall be inquired, 
 tried, heard, determined, and judged in such shires, &c., in like 
 form and condition as if any such offense had been committed 
 on the land, &c. 
 
 " And such as shall be convicted, &c., shall have and suffer 
 
232 THE POLITICAL AND ECONOMIC 
 
 such pains of death, &c., as if they had been attainted of any 
 treason, felony, robbery, or other of the said offenses done upon 
 the land." 
 
 This statute, it is certain, does not change the nature of 
 piracy; but all treasons, felonies, robberies, murders and con 
 federacies committed in or upon the sea, are not declared to 
 have been, nor are they, piracies. If a man be indicted as a 
 pirate, the offense must be shown to have been piracy before the 
 statute; but if he be indicted for treason, felony, robbery, mur 
 der, or confederacy committed at sea, whether such offense was 
 or was not a piracy, he shall be punished in like manner as if 
 he had committed the same offense on land. The passage cited 
 from i Woodeson, 140, is a full authority to this point. Hav 
 ing stated that offenses committed at sea were formerly triable 
 before the Lord High Admiral, according to the course of the 
 Roman civil law, Woodeson says, " but by the statute 27H. 
 VIII. , ch. 4, and 28H. VIII., ch. 15, all treasons, felonies, 
 piracies, and other crimes committed on the sea, or where the 
 admiral has jurisdiction, shall be tried in the realm as if done 
 on land. But the statutes referred to affect only the manner 
 of the trial so far as respects piracy. The nature of the offense 
 is not changed. Whether a cHarge amounts to a piracy or 
 not, must still depend on the law of nations, except where, in 
 the case of British subjects, express acts of Parliament have 
 declared that the crimes therein specified shall be adjudged 
 piracy, or shall be liable to the same mode of trial and degree 
 of punishment." 
 
 This passage proves not only, that all offenses at sea are not 
 piracies by the law of nations, but also that all indictments for 
 piracy must depend on the law of nations, " except where, 
 in the case of British subjects, express acts of Parliament " have 
 changed the law. Why do not these " express acts of Parlia 
 ment " change the law as to others than " British subjects? " 
 The words are general ; " all treasons, felonies," &c. Why are 
 they confined in construction to British subjects? The answer 
 is a plain one. The jurisdiction of the nation is confined to its 
 territory and to its subjects. 
 
 The gentleman from Pennsylvania [Mr. Gallatin] aban 
 dons, and very properly abandons, this untenable ground. He 
 admits that no nation has a right to punish offenses against 
 another nation, and that the United States can only punish 
 
DOCTRINES OF JOHN MARSHALL 233 
 
 offenses against their own laws, and the law of nations. He 
 admits, too, that if there had only been a mutiny (and conse 
 quently if there had only been a murder) on board the Her- 
 moine, that the American courts could have taken no cognizance . 
 of the crime. Yet mutiny is punishable as piracy by the law of ) 
 both nations. That gentleman contends that the act committed 
 by Nash was piracy according to the law of nations. He sup 
 ports his position by insisting that the offense may be consti 
 tuted by the commission of a single act; that unauthorized 
 robbery on the high seas is this act, and that the crew having 
 seized the vessel, and being out of the protection of any nation, 
 were pirates. 
 
 It is true that the offense may be completed by a single act ; 
 but it depends on the nature of that act. If it be such as mani 
 fests general hostility against the world an intention to rob 
 generally then it is piracy; but if it be merely a mutiny and 
 murder in a vessel, for the purpose of delivering it up to the 
 enemy, it seems to be an offense against a single nation, and not 
 to be piracy. The sole object of the crew might be to go over to 
 the enemy, or to free themselves from the tyranny experienced 
 on board a ship of war, and not to rob generally. 
 
 But should it even be true that running away with the vessel 
 to deliver her up to an enemy was an act of general piracy, 
 punishable by all nations, yet the mutiny and murder was a dis 
 tinct offense. Had the attempt to seize the vessel failed after 
 the commission of the murder, then, according to the argument 
 of the gentleman from Pennsylvania, the American courts 
 could have taken no cognizance of the crime. Whatever, then, 
 might have been the law respecting the piracy, of the murder 
 there was no jurisdiction. For the murder, not the piracy, 
 Nash was delivered up. Murder, and not piracy, is compre 
 hended in the twenty-seventh article of the treaty between the 
 two nations. Had he been tried then, and acquitted on an in 
 dictment for the piracy, he must still have been delivered up 
 for the murder, of which the court could have no jurisdiction. 
 It is certain that an acquittal of the piracy would not have 
 discharged the murder; and, therefore, in the so much relied 
 on trials at Trenton, a separate indictment for murder was 
 foled after an indictment for piracy. Since, then, if acquitted 
 for piracy, he must have been delivered to the British govern 
 ment on the charge of murder, the President of the United 
 
 
234 THE POLITICAL AND ECONOMIC 
 
 States might, very properly, without prosecuting for the piracy, 
 direct him to be delivered up on the murder. 
 
 All the gentlemen who have spoken in support of the resolu 
 tions, have contended that the case of Thomas Nash is within 
 the purview of the act of Congress which relates to this subject, 
 and is by that act made punishable in the American courts. 
 This is, that the act of Congress designed to punish crimes 
 committed on board a British frigate. 
 
 Nothing can be more completely demonstrable than the un 
 truth of this proposition. 
 
 It has already been shown that the legislative jurisdiction of 
 a nation extends only to its own territory, and to its own cit 
 izens, wherever they may be. Any general expression in a leg 
 islative act must, necessarily, be restrained to objects within the 
 jurisdiction of the legislature passing the act. Of consequence, 
 an act of Congress can only be construed to apply to the terri 
 tory of the United States comprehending every person within 
 it, and to the citizens of the United States. 
 
 But independent of this undeniable truth, the act itself 
 affords complete testimony of its intention and extent. (See 
 Laws of the U. S., Vol I., p. 10.) 
 
 The title is, " An act for the punishment of certain crimes 
 against the United States." Not against Britain, France, or 
 the world, but singly " against the United States." 
 
 The first section relates to treason, and its objects are, " any 
 person or persons owing allegiance to the United States." 
 This description comprehends only the citizens of the United 
 States, and such others as may be on its territory or in its 
 service. 
 
 The second section relates to misprision of treason, and 
 declares, without limitation, that any person or persons, having 
 knowledge of any treason, and not communicating the same, 
 shall be guilty of that crime. Here, then, is an instance of that 
 limited description of persons in one section, and of that gen 
 eral description in another, which has been relied on to support 
 the construction contended for by the friends of the resolutions. 
 But will it be pretended that a person can commit misprision 
 of treason, who cannot commit treason itself? That he would 
 be punishable for concealing a treason, who could not be pun 
 ished for plotting it? Or can it be supposed that the act 
 designed to punish an Englishman or a Frenchman, who, re- 
 
DOCTRINES OF JOHN MARSHALL 235 
 
 siding in his own country, should have knowledge of treasons 
 against the United States, and should not cross the Atlantic 
 to reveal them? 
 
 The same observations apply to the sixth section, which 
 makes " any person or persons " guilty of misprision of felony, 
 who having knowledge of murder or other offenses enumerated 
 in that section, should conceal them. It is impossible to apply 
 this to a foreigner, in a foreign land, or to any person not 
 owing allegiance to the United States. 
 
 The eighth section, which is supposed to comprehend the 
 case, after declaring that if any person or persons shall commit 
 murder on the high seas, he shall be punishable with deaf 
 proceeds to say, that if any captain or mariner shall piraticLdy 
 run away with a ship or vessel, or yield her up voluntarily to a 
 pirate, or if any seaman shall lay violent hands on his com 
 mander, to prevent his fighting, or shall make a revolt in the 
 ship, every such offender shall be adjudged a pirate and a 
 felon. 
 
 The persons who are the objects of this section of the act 
 are all described in general terms, which might embrace the 
 subjects of all nations. But is it to be supposed, that if, in an 
 engagement between an English and a French ship of war, the 
 crew of the one or the other should lay violent hands on the 
 captain, and force him to strike, that this would be an offense 
 against the act of Congress, punishable in the courts of the 
 United States? On this extended construction of the general 
 terms of the section, not only the crew of one of the foreign 
 vessels forcing their captain to surrender to another, would 
 incur the penalties of the act, but if, in the late action between 
 the gallant Truxton and a French frigate, the crew of that 
 frigate had compelled the captain to surrender while he was 
 unwilling to do so, they would have been indictable as felons 
 in the courts of the United States. But surely the act of 
 Congress admits of no such extravagant construction. 
 
 His colleagues, Mr. Marshall said, had cited and particularly 
 relied on the ninth section of the act. That section declares, 
 that if a citizen shall commit any of the enumerated piracies, or 
 any act of hostility on the high seas against the United States, 
 under color of a commission from any foreign prince or state, 
 he shall be adjudged a pirate, felon, and robber, and shall suffer 
 death. 
 
236 THE POLITICAL AND ECONOMIC 
 
 This section is only a positive extension of the act to a case 
 which might otherwise have escaped punishment. It takes 
 away the protection of a foreign commission from an Ameri 
 can citizen, who on the high seas robs his countrymen. This 
 is no exception from any preceding part of the law, because 
 there is no part which relates to the conduct of vessels com 
 missioned by a foreign power; it only proves that, in the 
 opinion of the legislature, the penalties of the act could not, 
 without this express provision, have been incurred by a citizen 
 holding a foreign commission. 
 
 It is then most certain that the act of Congress does not 
 comprehend the case of a murder committed on board a 
 foreign ship of war. 
 
 The gentleman from New York has cited 2 Woodeson, 
 428, to show that the courts of England extend their jurisdic 
 tion to piracies committed by the subjects of foreign nations. 
 
 This has not been doubted. The case from Woodeson is a 
 case of robberies committed on the high seas by a vessel with 
 out authority. There are ordinary acts of piracy, which, as 
 has been already stated, being offenses against all nations, are 
 punishable by all. The case from 2 Woodeson, and the note 
 cited from the same book, by the gentleman from Delaware, 
 are strong authorities against the doctrines contended for by 
 the friends of the resolutions. 
 
 It has also been contended, that the question of jurisdiction 
 was decided at Trenton, by receiving indictments against per 
 sons there arraigned for the same offense, and by retaining 
 them for trial after the return of the habeas corpus. 
 
 Every person in the slightest degree acquainted with ju 
 dicial proceedings, knows that an indictment is no evidence of 
 jurisdiction; and that in criminal cases, the question of juris 
 diction will seldom be made but by arrest of judgment after 
 conviction. 
 
 The proceedings after the return of the habeas corpus only 
 prove that the case was not such a case as to induce the judge 
 immediately to decide against his jurisdiction. The question 
 was not free from doubt, and therefore might very properly be 
 postponed until its decision should become necessary. 
 
 It has been argued by the gentleman from New York that 
 the form of indictment is, itself, evidence of a power in the 
 court to try the case. Every word of that indictment, said 
 
DOCTRINES OF JOHN MARSHALL 237 
 
 the gentleman, gives the lie to a denial of the jurisdiction of the 
 court. 
 
 It would be assuming a very extraordinary principle indeed, 
 to say that the words inserted in an indictment for the express 
 purpose of assuming the jurisdiction of a court should be ad 
 mitted to prove that jurisdiction. The question certainly de 
 pended on the nature of the fact, and not on the description of 
 the fact. But as an indictment must necessarily contain for 
 mal words in order to be supported, and as forms often denote 
 what a case must substantially be to authorize a court to take 
 cognizance of it, some words in the indictments, at Trenton, 
 ought to be noticed. The indictments charge the persons to 
 have been within the peace, and the murder to have been com 
 mitted against the peace, of the United States. These are 
 necessary averments, and, to give the court jurisdiction, the fact 
 ought to have accorded with them. But who will say the crew 
 of a British frigate on the high seas are within the peace of the 
 United States, or a murder committed on board such a frig 
 ate against the peace of any other than the British govern 
 ment. 
 
 It is then demonstrated, that the murder with which Thomas 
 Nash was charged was not committed within the jurisdiction 
 of the United States, and, consequently, that the case stated 
 was completely within the letter and the spirit of the twenty- 
 seventh article of the treaty between the two nations. If the 
 necessary evidence was produced, he ought to have been deliv 
 ered up to justice. It was an act to which the American nation 
 was bound by a most solemn contract. To have tried him for 
 the murder would have been mere mockery. To have con 
 demned and executed him, the court having no* jurisdiction, 
 would have been murder; to have acquitted and discharged 
 him, would have been a breach of faith and a violation of 
 national duty. 
 
 But it has been contended, that although Thomas Nash ought 
 to have been delivered up to the British minister, on the 
 requisition made by him in the name of his government, yet 
 the interference of the President was improper. 
 
 This, Mr. Marshall said, led to his second proposition, 
 which was, 
 
 That the case was a case for executive and not judicial de 
 cision. He admitted implicitly the division of powers stated 
 
238 THE POLITICAL AND ECONOMIC 
 
 by the gentleman from New York, and that it was the duty 
 of each department to resist the encroachments of the others. 
 
 This being established, the inquiry was, to what department 
 was the power in question allotted? 
 
 The gentleman from New York had relied on the second 
 section of the third article of the constitution, which enu 
 merates the cases to which the judicial power of the United 
 States extends, as expressly including that now under consid 
 eration. Before he examined that section, it would not be im 
 proper to notice a very material misstatement of it made in the 
 resolutions offered by the gentleman from New York. By the 
 constitution, the judicial power of the United States is extended 
 to all cases in law and equity, arising under the constitution, 
 laws and treaties of the United States ; but the resolutions de 
 clare the judicial power to extend to all questions arising under 
 the constitution, treaties and laws of the United States. The 
 difference between the constitution and the resolutions was 
 material and apparent. A case in law or equity was a term 
 well understood, and of limited signification. It was a con 
 troversy between parties which had taken a shape for judicial 
 decision. If the judicial power extended to every question 
 under the constitution, it would involve almost every subject 
 proper for legislative discussion and decision ; if to every ques 
 tion under the laws and treaties of the United States, it would 
 involve almost every subject on which the executive could act. 
 The division of power which the gentleman had stated, could 
 exist no longer, and the other departments would be swallowed 
 up by the judiciary. But it was apparent that the resolutions 
 had essentially misrepresented the constitution. He did not 
 charge the gentleman from New York with intentional misrep 
 resentation ; he would not attribute to him such an artifice in 
 any case, much less in a case where detection was so easy and 
 so certain. Yet this substantial departure from the constitu 
 tion, in resolutions affecting substantially to unite it, was not 
 less worthy of remark for being unintentional. It manifested 
 the course of reasoning by which the gentleman had himself 
 been misled, and his judgment betrayed into the opinions those 
 resolutions expressed. 
 
 By extending the judicial power to all cases in law and 
 equity, the constitution had never been understood to confer 
 on that department any political power whatever. To come 
 
DOCTRINES OF JOHN MARSHALL 239 
 
 within this description, a question must assume a legal form 
 for forensic litigation and judicial decision. There must be 
 parties to come into court, who can be reached by its process, 
 and bound by its power; whose rights admit of ultimate de 
 cision by a tribunal to which they are bound to submit. 
 
 A case in law or equity proper for judicial decisions may 
 arise under a treaty, where the rights of individuals acquired 
 or secured by a treaty are to be asserted or defended in court. 
 As under the fourth or sixth article of the treaty of peace with 
 Great Britain, or under those articles of our late treaties with 
 France, Prussia, and other nations, which secure to the subjects 
 of those nations their property within the United States; or, 
 as would be an article which, instead of stipulating to deliver up 
 an offender, should stipulate his punishment, provided the case 
 was punishable by the laws and in the courts of the United 
 States. But the judicial power cannot extend to political com 
 pacts; as, the establishment of the boundary line between the 
 American and British dominions; the case of the late guarantee 
 in our treaty with France, or the case of the delivery of a mur 
 derer under the twenty-seventh article of our present treaty 
 with Britain. 
 
 The gentleman from New York has asked, triumphantly 
 asked, what power exists in our high courts to deliver up an 
 individual to a foreign government? Permit me, said Mr. 
 Marshall, but not triumphantly, to retort the question By 
 what authority can any court render such a judgment? What 
 power does a court possess to seize any individual, and deter 
 mine that he shall be adjudged by a forign tribunal? Surely 
 our courts possess no such power, yet they must possess it, if 
 this article of the treaty is to be executed by the courts. 
 
 Gentlemen have cited and relied on that clause in the consti 
 tution which enables Congress to define and punish piracies 
 and felonies committed on the high seas, and offenses against 
 the law of nations, together with the act of Congress declaring 
 the punishment of those offenses, as transferring the whole 
 subject to the courts. But that clause can never be construed 
 to make to the government a grant of power, which the people 
 making it did not themselves possess. It has already been 
 shown that the people of the United States have no jurisdiction 
 over offenses committed on board a foreign ship against a 
 foreign nation. Of consequence, in framing a government 
 
240 THE POLITICAL AND ECONOMIC 
 
 for themselves, they cannot have passed this jurisdiction to that 
 government. The law, therefore, cannot act upon the case. 
 But this clause of the constitution cannot be considered, and 
 need not be considered, as affecting acts which are piracy under 
 the law of nations. As the judicial power of the United 
 States extends to all cases of admiralty and marine jurisdiction, 
 and piracy under the law of nations is of admiralty and 
 maritime jurisdiction, punishable by every nation, the judicial 
 power of the United States, of course extends to it. On this 
 principle the courts of admiralty under the confederation took 
 cognizance of piracy, although there was no express power in 
 Congress to define and punish the offense. 
 
 But the extension of the judicial power of the United States 
 to all cases of admiralty and maritime jurisdiction must neces 
 sarily be understood with some limitation. All cases of ad 
 miralty and maritime jurisdiction which, from their nature, are 
 triable in the United States, are submitted to the jurisdiction of 
 the courts of the United States. There are cases of piracy by 
 the law of nations, and cases within the legislative jurisdiction 
 of the nation. The people of America possessed no other 
 power over the subject, and could, consequently, transfer no 
 other to their courts ; and it has already been proved, that a 
 murder committed on board a foreign ship of war is not com 
 prehended within this description. 
 
 The consular convention with France has also been relied on, 
 as proving the act of delivering up an individual to a foreign 
 power, to be in its nature judicial, and not executive. 
 
 The ninth article of that convention authorizes the consuls 
 and vice-consuls of either nation to cause to be arrested all 
 deserters from their vessels, " for which purpose the said con 
 suls and vice-consuls shall address themselves to the courts, 
 judges, and officers competent." 
 
 This article of the convention does not, like the twenty- 
 seventh article of the treaty with Britain, stipulate a national 
 act, to be performed on the demand of a nation ; it only author 
 izes a foreign minister to cause an act to be done, and pre 
 scribes the course he is to pursue. The contract itself is, that 
 the act shall be performed by the agency of the foreign consul, 
 through the medium of the courts ; but this affords no evidence 
 that a contract of a very different nature is to be performed 
 in the same manner. 
 
DOCTRINES OF JOHN MARSHALL 241 
 
 It is said that the then President of the United States de 
 clared the incompetency of the courts, judges, and officers, to 
 execute this contract, without an act of the legislature. But 
 the then President made no such declaration. He has said that 
 some legislative provision is requisite to carry the stipulations 
 of the convention into full effect. This, however, is by no 
 means declaring the incompetency of a department to perform 
 an act stipulated by treaty, until the legislative authority shall 
 direct its performance. 
 
 It has been contended, that the conduct of the executive on 
 former occasions, similar to this in principle, has been such as 
 to evince an opinion, even in that department, that the case in 
 question is proper for the decision of the courts. 
 
 The fact adduced to support this argument, is the determina 
 tion of the late President on the case of prizes made within the 
 jurisdiction of the United States, or by privateers fitted out in 
 their ports. The nation was bound to deliver up those prizes, 
 in like manner as the nation is now bound to deliver up an in 
 dividual demanded under the twenty-seventh article of the 
 treaty with Britain. The duty was the same, and devolved on 
 the same department. 
 
 In quoting the decision of the executive on that case, the 
 gentleman from New York has taken occasion to bestow a high 
 encomium on the late President, and to consider his conduct as 
 furnishing an example worthy the imitation of his successor. 
 
 It must be the cause of much delight to the real friends of 
 that great man, to those who supported his administration while 
 in office from a conviction of its wisdom and its virtue, to hear 
 the unqualified praise which is now bestowed on it by those who 
 had been supposed to possess different opinions. If the 
 measure now under consideration shall be found, on examina 
 tion, to be the same in principle with that which has been cited 
 by its opponents as a fit precedent for it, then may the friends of 
 the gentleman now in office indulge the hope, that when he, like 
 his predecessor, shall be no more, his conduct, too, may be 
 quoted as an example for the government of his successors. 
 
 The evidence relied to prove the opinion of the then executive 
 on the case, consists of two letters from the Secretary of 
 State the one of the 2Qth of June, 1793, to Mr. Genet, and 
 the other of the i6th of August, 1793, to Mr. Morris. 
 
 In the letter to Mr. Genet, the Secretary says, that the claim- 
 
242 THE POLITICAL AND ECONOMIC 
 
 ant having filed his libel against the ship William in the Court 
 of Admiralty, there was no power which could take the vessel 
 out of court until it had decided against its own jurisdiction; 
 that having so decided, the complaint is lodged with the execu 
 tive, and he asks for evidence to enable that department to con 
 sider and decide finally on the subject. 
 
 It will be difficult to find in this letter an executive opinion, 
 that the case was not a case for executive decision. The con 
 trary is clearly avowed. It is true, that when an individual 
 claiming the property as his, had asserted that claim in court, 
 the executive acknowledges in itself a want of power to dis 
 miss or decide upon the claim thus pending in court. But this 
 argues no opinion of a want of power in itself to decide upon 
 the case, if, instead of being carried before a court as an in 
 dividual claim, it is brought before the executive as a national 
 demand. A private suit instituted by an individual, asserting 
 his claim to property, can only be controlled by that individual. 
 The executive can give no direction concerning it. But a public 
 prosecution, carried on in the name of the United States, can 
 without impropriety be dismissed at the will of the government. 
 The opinion, therefore, given in this letter is unquestionably 
 correct ; but it is certainly misunderstood, when it is considered 
 as being an opinion that the question was not in its nature a 
 question for executive decision. 
 
 In the letter to Mr. Morris, the secretary asserts the principle, 
 that vessels taken within our jurisdiction ought to be restored, 
 but says it is yet unsettled whether the act of restoration is to 
 be performed by the executive or judicial department. 
 
 The principle, then, according to this letter, is not submitted 
 to the courts whether a vessel captured within a given dis 
 tance of the American coast was or was not captured within the 
 jurisdiction of the United States, was a question not to be de 
 termined by the courts, but by the executive. The doubt ex 
 pressed is, not what tribunal shall settle the principle, but 
 what tribunal shall settle the fact. In this respect a doubt 
 might exist in the case of prizes, which could not exist in the 
 case of a man. Individuals on each side claimed the property, 
 and therefore their rights could not be brought into court, and 
 there contested as a case in law or equity. The demand of a 
 man made by a nation stands on different principles. 
 
 Having noticed the particular letters cited by the gentleman 
 
DOCTRINES OF JOHN MARSHALL 243 
 
 from New York, permit me now, said Mr. Marshall, to ask the 
 attention of the house to the whole course of executive conduct 
 on this interesting subject. 
 
 It is first mentioned, in a letter from the Secretary of State to 
 Mr. Genet, of the 25th of June, 1793. In that letter, the sec 
 retary states a consultation between himself and the secretaries 
 of the treasury and war (the President being absent), in which 
 (so well were they assured of the President s way of thinking 
 in those cases) it was determined, that the vessel should be 
 detained in the custody of the consuls in the ports, " until the 
 government of the United States shall be able to inquire into, 
 and decide on the fact." 
 
 In his letter of the I2th of July, 1793, the secretary writes, 
 the President has determined to refer the questions concerning 
 prizes " to persons learned in the laws." And he requests that 
 certain vessels enumerated in the letter should not depart " until 
 this ultimate determination shall be made known." 
 
 In his letter of the 7th of August, 1793, the secretary informs 
 Mr. Genet, that the President considers the United States as 
 bound " to effectuate the restoration of, or to make compensa 
 tion for, prizes which shall have been made of any of the parties 
 at war with France, subsequent to the 5th day of June last, by 
 privateers fitted out of our ports." That it is consequently 
 expected that Mr. Genet will cause restitution of such prizes to 
 be made and that the United States will cause restitution to be 
 made " of all such prizes as shall be hereafter brought within 
 their ports by any of the said privateers." 
 
 In his letter of the loth of November, 1793, the secretary 
 informs Mr. Genet, that, for the purpose of obtaining testimony 
 to ascertain the fact of capture within the jurisdiction of the 
 United States, the governors of the several states were re 
 quested, on receiving any such claim, immediately to notify 
 thereof the attorneys of their several districts, whose duty it 
 would be to give notice " to the principle agent of both parties, 
 and also to the consuls of the nations interested, and to recom 
 mend to them to appoint by mutual consent arbiters to decide 
 whether the capture was made within the jurisdiction of the 
 United States, as stated in my letter of the 8th instant, accord 
 ing to whose award the governor may proceed to deliver the 
 vessel to the one or the other party." " If either party refuse 
 to name arbiters, then the attorney is to take depositions on 
 
244 THE POLITICAL AND ECONOMIC 
 
 notice, which he is to transmit for the information and decision 
 of the President." " This prompt procedure is the more to be 
 insisted on, as it will enable the President, by an immediate 
 delivery of the vessel and cargo to the party having title, to pre 
 vent the injuries consequent on long delay." 
 
 In his letter of the 22d of November, 1793, the secretary 
 repeats in substance, his letters of the I2th of July and /th of 
 August, and says, that the determination to deliver up certain 
 vessels, involved the brig Jane, of Dublin, the brig Lovely fcass, 
 and the brig Prince William Henry. He concludes with say 
 ing, " I have it in charge to inquire of you, sir, whether these 
 three brigs have been given up according to the determina 
 tion of the President, and if they have not, to repeat the 
 requisition that they may be given up to their former owners." 
 
 Ultimately it was settled that the fact should be investigated 
 in the courts, but the decision was regulated by the principles 
 established by the executive department. 
 
 The decision, then, on the case of vessels captured within 
 the American jurisdiction, by privateers fitted out of the 
 American ports, which the gentleman from New York has 
 cited with such merited approbation; and which he has de 
 clared to stand on the same principles with those which ought 
 to have governed in the case of Thomas Nash ; which deserves 
 the more respect, because the government of the United States 
 was then so circumstanced as to assure us, that no opinion was 
 lightly taken up, and no resolution formed but on mature con 
 sideration. This decision, quoted as a precedent, and pro 
 nounced to be right, is found, on fair and full examination, to 
 be precisely and unequivocally the same with that which was 
 made in the case under consideration. It is a full authority to 
 show, that, in the opinion always held by the American govern 
 ment, a case like that of Thomas Nash is a case for executive, 
 and not judicial decision. 
 
 The clause in the constitution, which declares, that " the trial 
 of all crimes, except in cases of impeachment, shall be by jury," 
 has also been relied on as operating on the case, and trans 
 ferring the decision on a demand for the delivery of an in 
 dividual from the executive to the judicial department. 
 
 But certainly this clause in the constitution of the United 
 States cannot be thought obligatory on, and for the benefit of, 
 the whole world. It is not designed to secure the rights of the 
 
DOCTRINES OF JOHN MARSHALL 245 
 
 people of Europe and Asia, or to direct and control proceed 
 ings against criminals throughout the universe. It can then be 
 assigned only to guide proceedings of our own courts, and to 
 prescribe the mode of punishing offenses committed against the 
 government of the United States, and to which the jurisdiction 
 of the nation may rightfully extend. 
 
 It has already been shown, that the courts of the United 
 States were incapable of trying the crime for which Thomas 
 Nash was delivered up to justice ; the question to be determined 
 was, not how his crime should be tried and punished, but 
 whether he should be delivered up to a foreign tribunal which 
 was alone capable of trying and punishing him. A provision 
 for the trial of crimes in the courts of the United States, is 
 clearly not a provision for the performance of a national com 
 pact for the surrender to a foreign government of an offender 
 against that government. 
 
 The clause of the constitution declaring that the trial of all 
 crimes shall be by jury, has never even been construed to extend 
 to the trial of crimes committed in the land and naval forces 
 of the United States. Had such a construction prevailed, it 
 would most probably have prostrated the constitution itself, 
 with the liberties and the independence of the nation, before the 
 first disciplined invader who should approach our shores. 
 Necessity would have imperiously demanded the review and 
 amendment of so unwise a provision. If, then, this clause does 
 not extend to offenses committed in the fleets and armies of the 
 United States, how can it be construed to extend to offenses 
 committed in the fleets and armies of Britain or of France, 
 or of the Ottoman or Russian empires ? 
 
 The same argument applies to the observations on the seventh 
 article of the amendments to the constitution. That article 
 relates only to trials in the courts of the United States, and not 
 to the performance of a contract for the delivery of a murder 
 not triable in those courts. 
 
 In this part of the argument, the gentleman from New York 
 has presented a dilemma of a very wonderful structure indeed. 
 He says that the offense of Thomas Nash was either a crime 
 or not a crime. If it was a crime, the constitutional mode of 
 punishment ought to have been observed. If it was not a 
 crime, he ought not have been delivered up to a foreign govern 
 ment, where his punishment was inevitable. 
 
246 THE POLITICAL AND ECONOMIC 
 
 It had escaped the observation of that gentleman, that if the 
 murder committed by Thomas Nash was a crime, yet it was not 
 a crime provided for by the constitution, or triable in the 
 courts of the United States; and that if it was not a crime, yet 
 it is the precise case in which his surrender was stipulated by 
 treaty. Of this extraordinary dilemma, then, the gentleman 
 from New York is, himself, perfectly at liberty to retain either 
 form. The gentleman is incorrect in every part of his state 
 ment. Murder on board a British frigate is not a crime created 
 by treaty. It would have been a crime of precisely the same 
 magnitude, had the treaty never been formed. It is not pun 
 ished by sending the offender out of the United, States. The 
 experience of this unfortunate criminal, who was hung and 
 gibbeted, evinced to him that the punishment of his crime was 
 of a much more serious nature than the mere banishment from 
 the United States. 
 
 The gentleman from Pennsylvania and the gentleman from 
 Virginia have both contended, that this was a case proper for 
 the decision of the courts, because points of law occurred, and 
 points of law must have been decided in its determination. 
 
 The points of law which must have been decided are stated 
 by the gentleman from Pennsylvania to be, first, a question 
 whether the offense was committed within the British jurisdic 
 tion; and, secondly, whether the crime charged was compre 
 hended within the treaty. 
 
 It is true, sir, these points of law must have occurred, and 
 must have been decided but it by no means follows that they 
 could only have been decided in court. A variety of legal ques 
 tions must present themselves in the performance of every part 
 of executive duty, but these questions are not therefore to be 
 decided in a court. Whether a patent for land shall issue or 
 not is always a question of law, but not a question which must 
 necessarily be carried into court. The gentleman from Penn 
 sylvania seems to have permitted himself to have been misled 
 by the misrepresentation of the constitution made in the reso 
 lutions of the gentleman from New York ; and, in consequence 
 of being so misled, his observations have the appearance of 
 endeavoring to fit the constitution to his arguments, instead 
 of adapting his arguments to the constitution. 
 
 When the gentleman has proved that these are questions of 
 law, and that they must been decided by the President, he has 
 
DOCTRINES OF JOHN MARSHALL 247 
 
 not advanced a single step toward proving that they were im 
 proper for executive decision. The questions whether vessels 
 captured within three miles of the American coast, or by pri 
 vateers fitted out in American ports, were legally captured or 
 not, and whether the American government was bound to 
 restore them, if in its power, were questions of law, but they 
 were questions of political law, proper to be decided, and they 
 were decided by the executive, and not by the courts. 
 
 The casus foederis of the guaranty was a question of law, 
 but no man would have hazarded the opinion that such a ques 
 tion must be carried into court, and can only be there decided. 
 So the casus foederis under the twenty-seventh article of the 
 treaty with Britain is a question of law, but of political law. 
 The question to be decided is, whether the particular case 
 proposed be one in which the nation has bound itself to act, 
 and this is a question depending on principles never submitted to 
 courts. 
 
 If a murder shall be committed within the United States, 
 and the murderer should seek an asylum in Britain, the question 
 whether the casus foederis of the twenty-seventh article had 
 occurred, so that his delivery ought to be demanded, would be 
 a question of law, but no man would say it was a question which 
 ought to be decided in the courts. 
 
 When, therefore, the gentleman from Pennsylvania has 
 established, that in delivering up Thomas Nash, points of law 
 were decided by the President he has established a position 
 which in no degree whatever aids his argument. 
 
 The case was in its nature a national demand made upon the 
 nation. The parties were the two nations. They cannot come 
 into court to litigate their claims, nor can a court decide on 
 them. Of consequence, the demand is not a case for judicial 
 cognizance. 
 
 The President is the sole organ of the nation in its external 
 relations, and its sole representative with foreign nations. Of 
 consequence, the demand of a foreign nation can only be made 
 on him. He possesses the whole executive power. He holds 
 and directs the force of the nation. Of consequence, any 
 act to be performed by the force of the nation is to be per 
 formed through him. He is charged to execute the laws. A 
 treaty is declared to be a law. He must then execute a treaty, 
 where he, and he alone, possesses the means of executing it. 
 
248 THE POLITICAL AND ECONOMIC 
 
 The treaty, which is a law, enjoins the performance of a 
 particular object. The person who is to perform this object 
 is marked out by the constitution, since the person is named 
 who conducts the foreign intercourse, and is to take care that 
 the laws be faithfully executed. The means by which it is to 
 be performed the force of the nation are in the hands of 
 this person. Ought not this person to perform the object, al 
 though the particular mode of using the means has not been 
 prescribed ? Congress unquestionably may prescribe the mode ; 
 and Congress may devolve on others the whole execution of the 
 contract, but till this be done, it seems the duty of the executive 
 department to execute the contract by any means it possesses. 
 
 The gentleman from Pennsylvania contends that, although 
 this should be properly an executive duty, yet it cannot be per 
 formed until Congress shall direct the mode of performance. 
 He says, that although the jurisdiction of the courts is extended 
 by the constitution to all cases of admiralty and maritime juris 
 diction, yet if the courts had been created without any express 
 assignment of jurisdiction, they could not have taken cog 
 nizance of causes expressly allotted to them by the constitution. 
 The executive, he says, can, no more than courts, supply a 
 legislative omission. 
 
 It is not admitted that in the case stated, courts could not 
 have taken jurisdiction. The contrary is believed to be the cor 
 rect opinion. And although the executive cannot supply a total 
 legislative omission, yet it is not admitted or believed that there 
 is such a total omission in this case. 
 
 The treaty, stipulating that a murderer shall be delivered up 
 to justice, is as obligatory as an act of Congress making the 
 same declaration. If, then, there was an act of Congress in 
 the words of the treaty, declaring that a person who had com 
 mitted a murder within the jurisdiction of Britain, and sought 
 an asylum within the territory of the United States, should be 
 delivered up by the United States, on demand of His Britannic 
 Majesty, and such evidence of his criminality as would have 
 justified his commitment for trial, had the offense been here 
 committed ; could the President, who is bound to execute the 
 laws, have justified a refusal to deliver up the criminal, by say 
 ing that the legislature had totally omitted to provide for the 
 case? 
 
 The executive is not only the constitutional department, but 
 
DOCTRINES OF JOHN MARSHALL 249 
 
 seems to be the proper department to which the power in ques 
 tion may most wisely and most safely be confided. 
 
 The department which is entrusted with the whole foreign 
 intercourse of the nation, with the negotiation of all its treaties, 
 with the power of demanding a reciprocal performance of the 
 article, which is accountable to the nation for the violation of 
 its engagements with foreign nations, and for the consequences 
 resulting from such violations, seems the proper department to 
 be entrusted with the execution of a national contract like 
 that under consideration. 
 
 If at any time policy may temper the strict execution of the 
 contract, where may that political discretion be placed so safely 
 as in the department whose duty it is to understand precisely 
 the state of the political intercourse and connection between the 
 United States and foreign nations, to understand the manner in 
 which the particular stipulation is explained and performed by 
 foreign nations, and to understand completely the state of the 
 Union? 
 
 This department, too, independent of judicial aid, which may, 
 perhaps, in some instances be called in, is furnished with a great 
 law-officer, whose duty it is to understand and to advise when 
 the casus foederis occurs. And if the President should be 
 caused to be arrested under the treaty an individual who was so 
 circumstanced as not to be properly the object of such an arrest, 
 he may perhaps bring the question of the legality of his arrest 
 before a judge by a writ of habeas corpus. 
 
 It is then demonstrated, that according to the practice, and 
 according to the principles of the American government, the 
 question whether the nation has or has not bound itself to 
 deliver up any individual, charged with having committed mur 
 der or forgery within the jurisdiction of Britain, is a question, 
 the power to decide which rests alone with the executive de 
 partment. 
 
 It remains to enquire, whether in exercising this power, and 
 in performing the duty it enjoins, the President has committed 
 an unauthorized and dangerous interference with judicial de 
 cisions. 
 
 That Thomas Nash was committed originally at the instance 
 of the British consul at Charleston, not for trial in the American 
 courts, but for the purpose of being delivered up to justice in 
 conformity with the treaty between the two nations, has been 
 
250 THE POLITICAL AND ECONOMIC 
 
 already so ably argued by the gentleman from Delaware, that 
 nothing further can be added to that point. He would, there 
 fore, Mr. Marshall said, consider the case as if Nash, instead 
 of having been committed for the purposes of the treaty, had 
 been committed for trial. Admitting even this to be the fact, 
 conclusions which have been drawn from it were by no means 
 warranted. 
 
 Gentlemen had considered it as an offense against judicial 
 authority, and a violation of judicial rights, to withdraw from 
 their sentence a criminal against whom a prosecution had been 
 commenced. They had treated the subject as if it was the 
 privilege of courts to condemn to death the guilty wretch ar 
 raigned at their bar, and that to intercept the judgment was to 
 violate the privilege. Nothing can be more incorrect than this 
 view of the case. It is not the privilege, it is the sad duty of 
 courts to administer criminal judgment. It is a duty to be per 
 formed at the demand of the nation, and with which the nation 
 has a right to dispense. If the judgment of death is to be 
 pronounced, it must be at the prosecution of the nation, and the 
 nation may at will stop that prosecution. In this respect the 
 President expresses constitutionally the will of the nation, and 
 may rightfully, as was done in the case at Trenton, enter a 
 nolle prosequi, or direct that the criminal be prosecuted no 
 further. This is no interference with judicial decisions, nor 
 any invasion of the province of a court. It is the exercise of an 
 indubitable and a constitutional power. Had the President 
 directed the judge at Charleston to decide for or against his 
 own jurisdiction, to condemn or acquit the prisoner, this would 
 have been a dangerous interference with judicial decisions, and 
 ought to have been resisted. But no such direction has been 
 given, nor any such decision been required. If the President 
 determined that Thomas Nash ought to have been delivered up 
 to the British government for a murder committed on board a 
 British frigate, provided evidence of the fact was adduced, it 
 was a question which duty obliged him to determine, and which 
 he determined rightly. If in consequence of this determina 
 tion he arrested the proceedings of a court on a national prose 
 cution, he had a right to arrest and to stop them, and the exer 
 cise of this right was a necessary consequence of the determina 
 tion of the principal question. In conforming to this decision, 
 the court has left open the question of its jurisdiction. Should 
 
DOCTRINES OF JOHN MARSHALL 251 
 
 another prosecution of the same sort be commenced, which 
 should not be suspended but continued by the executive, the 
 case of Thomas Nash would not bind as a precedent against the 
 jurisdiction of the court. If it should even prove that in the 
 opinion of the executive, a murder committed on board a for 
 eign fleet was not within the jurisdiction of the court, it would 
 prove nothing more; and though this opinion might rightfully 
 induce the executive to exercise its power over the prosecution, 
 yet if the prosecution was continued, it would have no influ 
 ence with the court, in deciding on its jurisdiction. 
 
 Taking the fact, then, even to be as the gentleman in support 
 of the resolutions would state it, the fact cannot avail them. 
 
 It is to be remembered, too, that in the case stated to the 
 President, the judge himself appears to have considered it as 
 proper for executive decision, and to have wished that decision. 
 The President and judge seem to have entertain d on this sub 
 ject the same opinion ; and in consequence of the opinion of the 
 judge, the application was made to the President. 
 
 It has then been demonstrated : 
 
 ist. The case of Thomas Nash, as stated to the President, 
 was completely within the twenty-seventh article of the treaty 
 between the United States of America and Great Britain. 
 
 2d. That this question was proper for executive and not for 
 judicial decision ; and 
 
 3d. That in deciding it, the President is not chargeable with 
 an interference with judicial decisions. 
 
 After trespassing so long, Mr. Marshall said, on the pa 
 tience of the house, in arguing what had appeared to him 
 to be the material points growing out of the resolutions, he 
 regretted the necessity of detaining them still longer for the 
 purpose of noticing an observation, which appeared not to be 
 considered by the gentleman who made it as belonging to the 
 argument. 
 
 The subject introduced by this observation, however, was 
 so calculated to interest the public feelings, that he must be 
 excused for stating his opinion on it. 
 
 The gentleman from Pennsylvania had said, that an im 
 pressed American seaman, who should commit homicide for 
 the purpose of liberating himself from the vessel in which 
 he was confined, ought not to be given up as a murderer. 
 In this, Mr. Marshall said, he concurred entirely with that 
 
252 THE POLITICAL AND ECONOMIC 
 
 gentleman. He believed the opinion to be unquestionably 
 correct, as were the reasons that gentleman had given in sup 
 port of it. He had never heard any American avow a con 
 trary sentiment, nor did he believe a contrary sentiment could 
 find a place in the bosom of any American. He could not 
 pretend, and did not pretend, to know the opinion of the 
 executive on the subject, because he had never heard the 
 opinions of that department; but he felt the most perfect 
 conviction, founded on the general conduct of the govern 
 ment, that it could never surrender an impressed American 
 to the nation, which, in making the impressment, had com 
 mitted a national injury. 
 
 This belief was in no degree shaken by the conduct of the 
 executive in this particular case. 
 
 In his own mind, it was a sufficient defense of the Presi 
 dent from an imputation of this kind, that the fact of Thomas 
 Nash being an impressed American was obviously not con 
 templated by him in the decision he made on the principles 
 of the case. Consequently, if a new circumstance occurred, 
 which would essentially change the case decided by the Presi 
 dent, the judge ought not to have acted under the decision, 
 but the new circumstance ought to have been stated. Satis 
 factory as this defense might appear, he should not resort to 
 it, because to some it might seem a subterfuge. He defended 
 the conduct of the President on other and still stronger 
 ground. 
 
 The President had decided that murder committed on board 
 a British frigate on the high seas was within the jurisdiction 
 of that nation, and consequently within the twenty-seventh arti 
 cle of its treaty with the United States. He therefore directed 
 Thomas Nash to be delivered to the British minister, if satis 
 factory evidence of the murder should be adduced. The suffi 
 ciency of the evidence was submitted entirely to the judge. If 
 Thomas Nash had committed a murder, the decision was, 
 that he should be surrendered to the British minister; but if 
 he had not committed a murder, he was not to be surren 
 dered. 
 
 Had Thomas Nash been an impressed American, the homi 
 cide on board the Hermoine would, most certainly, not have 
 been a murder. 
 
 The act of impressing an American is an act of lawless 
 
DOCTRINES OF JOHN MARSHALL 253 
 
 violence. The confinement on board a vessel is a continuation 
 of that violence, and an additional outrage. Death committed 
 within the United States, in resisting such violence, would 
 not have been murder, and the person giving the wound could 
 not have been treated as a murderer. Thomas Nash was 
 only to have been delivered up to justice on such evidence 
 as, had the fact been committed within the United States, 
 would have been sufficient to have induced his committment 
 and trial for murder. Of consequence, the decision of the 
 President was so expressed as to exclude the case of an im 
 pressed American liberating himself by homicide. 
 
 He concluded with observing, that he had already too long 
 availed himself of the indulgence of the house to venture 
 further on that indulgence, by recapitulating, or reinforcing, 
 the arguments which had already been urged. 
 
 SPEECH OF JOHN MARSHALL OPPOSING PATRICK HENRY 
 
 Delivered in the Virginia Convention, June 10, 1788, urging the 
 
 ratification of the new Constitution 
 
 Mr. Chairman : I conceive that the object of the discussion 
 now before us is, whether democracy or Hespotisrn be most 
 eligible. I am sure that those who framed the system sub 
 mitted to our investigation, and those who now support it 
 intend the establishment and security of the former. The* 
 supporters of the Constitution claim the title of being firm 
 friends of the liberty and rights of mankind. They say that 
 they consider it as the best means of protecting liberty. We, 
 sir, idolize democracy. Thogc who oppose it have bestowed 
 eulogiums on monarchy. We prefer this system to any mon 
 archy, because we are convinced that it has a greater tendency 
 to secure our liberty and promote our happiness. We admire 
 it, because we think it a well regulated democracy : it is recom 
 mended to the good people of this country ; they are, through 
 us, to declare whether it be such a plan of government as will 
 establish and secure their freedom. 
 
 Permit me to attend to what the honorable gentleman, Mr. 
 Henry, has said. He has expatiated on the necessity of a 
 due attention to certain maxims to certain fundamental 
 principles, from which a free people ought never to depart. 
 I concur with him in the propriety of the observance of such 
 maxims. They are necessary in any government, but more 
 
254 THE POLITICAL AND ECONOMIC 
 
 essential to a democracy than to any other. What are the 
 favorite maxims of democracy? A strict observance of jus 
 tice and public faith, and a steady adherence to virtue. These, 
 sir, are the principles of a good government. No mischief, 
 no misfortune, ought to deter us from a strict observance of 
 justice and public faith. Would to heaven that these prin 
 ciples had been observed under the present government ! Had 
 this been the case, the friends of liberty would not be so willing 
 now to part with it. ptafTwe boast triat "ouF government is 
 founded on these maxims? Can we pretend to the enjoy 
 ment of political freedom or security, when we are told that a 
 man has been, by an act of Assembly, struck out of existence 
 without a trial by jury, without examination, without being 
 confronted with his accusers and witnesses, without the bene 
 fits of the law of the land? Where is our safety, when we are 
 told that this act was justifiable, because the person was not a 
 Socrates? W 7 hat has become of the worthy member s max 
 ims? Is this one of them? Shall it be a maxim that a man 
 shall be deprived of his life without the benefit of law ? Shall 
 such a deprivation of life be justified by answering that the 
 man s life was not taken secundum artem, because he was a 
 bad man ? Shall it be a maxim that government ought not to 
 be empowered to protect virtue? 
 
 The honorable member, after attempting to vindicate that 
 tyrannical legislative act to which I have been alluding, pro 
 ceeded to take a view of the dangers to which this country is 
 exposed. He told us that the principal danger arose from a 
 government which, if adopted, would give away the Missis 
 sippi. I intended to proceed regularly, by attending to the 
 clause under debate; but I must reply to some observations 
 which were dwelt upon to make impression on our minds 
 unfavorable to the plan upon the table. Have we no naviga 
 tion in, or do we derive no benefit from the Mississippi? 
 How shall we retain.it? By retaining that weak government 
 which has hitherto kept it from us? Is it thus that we shall 
 secure that navigation ? Give the government the power of 
 retaining it, and then we may hope to derive actual advantages 
 from it. Till we do this, we cannot expect that a government 
 which hitherto has not been able to protect it, will have the 
 power to do it hereafter. Have we attended too long to con 
 sider whether this government would be able to protect us? 
 
DOCTRINES OF JOHN MARSHALL 255 
 
 Shall we wait for further proofs of its inefficacy? If on 
 mature consideration the Constitution will be found to be 
 perfectly right on the subject of treaties, and containing no 
 danger of losing that navigation, will he still object? Will he 
 object because eight states are unwilling to part with it? This 
 is no good ground of objection. 
 
 He then stated the necessity and probability of obtaining 
 amendments. This we ought to postpone until we come to 
 that clause, and make up our minds whether there be anything 
 unsafe in this system. He conceived it impossible to obtain 
 amendments after adopting it. If he was right, does not 
 his own argument prove that in his own conception, previous 
 amendments cannot be had? For, sir, if subsequent amend 
 ments cannot be obtained, shall we get amendments before 
 we ratify? The reasons against the latter do not apply against 
 the former. There are in this state, and in every state in the 
 Union, many who are decided enemies of the Union. Re 
 flect on the probable conduct of such men. What will they 
 do? They will bring amendments which are local in their 
 nature, and which they know will not be accepted. What 
 security have we that other states will not do the same? We 
 are told that many in the states were violently opposed to it. 
 They are more mindful of local interests. They will never 
 propose such amendments as they think would be obtained. 
 Disunion will be their object. This will be attained by the 
 proposal of unreasonable amendments. This, sir, though a 
 strong cause, is not the only one that will militate against 
 previous amendments. Look at the comparative temper of 
 this country now and when the late Federal convention met. 
 We had no idea then of any particular system. The forma 
 tion of the most perfect plan was our object and wish. It 
 was imagined that the states would accede to, and be pleased 
 with, the proposition that would be made them. Consider the 
 violence of opinions, the prejudices and animosities which 
 have been since imbibed. Will not these operate greatly 
 against mutual concessions, or a friendly concurrence? This 
 will, however, be taken up more properly at another time. 
 He says we wish to have a strong, energetic, powerful govern 
 ment. We contend for a well-regulated democracy. He in 
 sinuates that the power of the government has been enlarged 
 by the convention, and that we may apprehend it will be en- 
 
256 THE POLITICAL AND ECONOMIC 
 
 larged by others. The convention did not, in fact, assume any 
 power. 
 
 They have proposed for our consideration a scheme of 
 government which they thought advisable. We are not bound 
 to adopt it if we disapprove of it. Had not every individual in 
 this community a right to tender that scheme which he thought 
 most conducive to the welfare of his country? Have not 
 several gentlemen already demonstrated that the convention 
 did not exceed their powers? But the Congress have the 
 power of making bad laws it seems. The Senate, with the 
 President, he informs us, may make a treaty which shall be 
 disadvantageous to us; and that, if they be not good men, it 
 will not be a good constitution. I shall ask the worthy member 
 only, if the people at large, and they alone, ought to make laws 
 and treaties. Has any man this in contemplation? You 
 cannot exercise the powers of government personally your 
 selves. You must trust to agents. If so, will you dispute 
 giving them the power of acting for you, from an existing 
 possibility that they may abuse it ? As long as it is impossible 
 for you to transact your business in person, if you repose 
 no confidence in delegates, because there is a possibility of 
 their abusing it, you can have no government; for the 
 power of doing good is inseparable from that of doing some 
 evil. 
 
 We may derive from Holland lessons very beneficial to 
 ourselves. Happy that country which can avail itself of the 
 misTortunes of others which can gain knowledge from that 
 source without fatal experience ! What has produced the late 
 disturbances in that country? The want of such a govern 
 ment as is on your table, and having in some measure such 
 a one as you are about to part with. The want of proper 
 powers in the government, the consequent deranged and re 
 laxed administration, the violence of contending parties, and 
 inviting foreign powers to interpose in their disputes, have 
 subjected them to all the mischiefs which have interrupted 
 their harmony. I cannot express my astonishment at his high- 
 colored eulogium on such a government. Can anything be 
 more dissimilar than the relation between the British govern 
 ment and the colonies, and the relation between Congress and 
 the states? We were not represented in Parliament. Here 
 we are represented. Arguments which prove the impropriety 
 
DOCTRINES OF JOHN MARSHALL 257 
 
 of being taxed by Britain do not hold against the exercise 
 of taxation by Congress. 
 
 Let me pay attention to the observation of the gentleman 
 who was last up, that the power of taxation ought not to be 
 given to Congress. This subject requires the undivided at 
 tention of this House. This power I think essentially neces 
 sary; for without it there will be no efficiency in the govern 
 ment. We have had a sufficient demonstration of the vanity of 
 depending on requisitions. How, then, can the general gov 
 ernment exist without this power? The possibility of its 
 being abused is urged as an argument against its expediency. 
 To very little purpose did Virginia discover the defects in the 
 old system ; to little purpose, indeed, did she propose improve 
 ments ; and to no purpose is this plan constructed for the pro 
 motion of our happiness, if we refuse it now, because it is 
 possible that it may be abused. The confederation has 
 nominal powers, but no means to carry them into effect. If 
 a system of government were devised by more than human in 
 telligence, it would not be effectual if the means were not 
 adequate to the power. All delegated powers are liable to be 
 abused. Arguments drawn from this source go in direct op 
 position to the government, and in recommendation of an 
 archy. The friends of the Constitution are as tenacious of 
 liberty as its enemies. They wish to give no power that will 
 endanger it. They wish to give the government powers to 
 secure and protect it. Our inquiry here must be whether the 
 power of taxation be necessary to perform the objects of the 
 Constitution, and whether it be safe, and as well guarded as 
 human wisdom can do it. What are the objects of the national 
 government? To protect the United States, and to promote 
 the general welfare. Protection, in time of war, is one of its 
 principal objects. Until mankind shall cease to have ambi 
 tion and avarice, wafs will arise. 
 
 The prosperity and happiness of the people depend on the 
 performance of these great and important duties of the gen 
 eral government. Can these duties be performed by one state ? 
 Can one state protect us and promote our happiness? The 
 honorable gentleman who has gone before me, Governor 
 Randolph, has shown that Virginia cannot do these things. 
 How, then, can they be done? By the national government 
 only. Shall we refuse to give it power to do them? We are 
 
258 THE POLITICAL AND ECONOMIC 
 
 answered, that the powers may be abused; that, though the 
 Congress may promote our happiness, yet they may prostitute 
 their powers to destroy our liberties. This goes to the de 
 struction of all confidence in agents. Would you believe that 
 men who had merited your highest confidence would deceive 
 you? Would you trust them again after one deceptioh? 
 Why then hesitate to trust the general government ? The ob 
 ject of our inquiry is, Is the power necessary, and is it guarded? 
 There must be men and money to protect us. How are ar 
 mies to be raised ? Must we not have money for that purpose? 
 But the honorable gentleman says that we need not be afraid 
 of war. Look at history, which has been so often quoted. 
 Look at the great volume of human nature. They will fore 
 tell you that a defenseless country cannot be secure. The 
 nature of man forbids us to conclude that we are in no danger 
 from war. The passions of men stimulate them to avail 
 themselves of the weakness of others. The powers of Eu 
 rope are jealous of us. It is our interest to watch their con 
 duct, and guard against them. They must be pleased with 
 our disunion. If we invite them by our weakness to attack 
 us, will they not do it ? If we add debility to our present situa 
 tion, a partition of America may take place. 
 
 It is, then, necessary to give the government that power, in 
 time of peace, which the necessity of war will render in 
 dispensable, or else we shall be attacked unprepared. The ex 
 perience of the world, a knowledge of human nature, and our 
 own particular experience will confirm this truth. When 
 danger shall come upon us, may we not do what we were 
 on the point of doing once already that is, appoint a dicta 
 tor? Were those who are now friends to this Constitution 
 less active in the defense of liberty on that trying occasion 
 than those who oppose it? When foreign dangers come, 
 may not the fear of immediate destruction, by foreign ene 
 mies, impel us to take a most dangerous step? Where, then, 
 will be our safety? We may now regulate and frame a plan 
 that will enable us to repel attacks, and render a recurrence 
 to dangerous expedients unnecessary. If we be prepared to 
 defend ourselves, there will be little inducement to attack us. 
 But if we defer giving the necessary power to the general gov 
 ernment till the moment of danger arrives, we shall give it then, 
 and with an unsparing hand. America, like other nations, 
 
DOCTRINES OF JOHN MARSHALL 259 
 
 may be exposed to war. The propriety of giving this power 
 will be proved by the history of the world, and particularly 
 of modern republics. I defy you to produce a single instance 
 where requisitions on several individual states composing a 
 confederacy have been honestly complied with. Did gentle 
 men expect to see such punctuality complied with in America ? 
 If they did, our own experience shows the contrary. 
 
 We are told that the Confederation carried us through the 
 war. Had not the enthusiasm of liberty inspired us with 
 unanimity, that system would never have carried us through 
 it. It would have been much sooner terminated had that 
 government been possessed of due energy. The inability of 
 Congress, and the failure of states to comply with the con 
 stitutional requisitions, rendered our resistance less efficient 
 than it might have been. The weakness of that government 
 caused troops to be against us which ought to have been on 
 our side, and prevented all resources of the community from 
 being called at once into action. The extreme readiness of the 
 people to make their utmost exertions to ward off solely the 
 pressing danger, supplied the place of requisitions. When 
 they came solely to be depended on, their inutility was fully 
 discovered. A bare sense of duty, or a regard to propriety, 
 is too feeble to induce men to comply with obligations. We 
 deceive ourselves if we expect any efficacy from these. If 
 requisitions will not avail, the government must have the 
 sinews of war some other way. Requisitions cannot be ef 
 fectual. They will be productive of delay, and will ultimately 
 be inefficient. By direct taxation, the necessities of the gov 
 ernment will be supplied in a peacable manner, without irri 
 tating the minds of the people. But requisitions cannot be 
 rendered efficient without a civil war without great expense 
 of money, and the blood of our citizens. Are there any other 
 means? Yes, that Congress shall apportion the respective 
 quotas previously, and if not complied with by the states, 
 that then this dreaded power shall be exercised. The opera 
 tion of this has been described by the gentleman who opened 
 the debate. He cannot be answered. This great objection 
 to that system remains unanswered. Is there no other argu 
 ment which ought to have weight with us on this subject? 
 Delay is a strong and pointed objection to it. 
 
 \Ve are told by the gentleman who spoke last, that direct 
 
2<5o THE POLITICAL AND ECONOMIC 
 
 taxation is unnecessary, because we are not involved in war. 
 This admits the propriety of recurring to direct taxation if 
 we were engaged in war. It has not been proved that we have 
 no dangers to apprehend on this point. What will be the con 
 sequence of the system proposed by the worthy gentleman? 
 Suppose the states should refuse? 
 
 The worthy gentleman who is so pointedly opposed to the 
 Constitution proposes remonstrances. Is it a time for Con 
 gress to remonstrate or compel a compliance with requisi 
 tions, when the whole wisdom of the Union and the power of 
 Congress are opposed to a foreign enemy? Another alterna 
 tive is, that if the states shall appropriate certain funds for the 
 use of Congress, Congress shall not lay direct taxes. Sup 
 pose the funds appropriated by the states for the use of Con 
 gress should be inadequate; it will not be determined whether 
 they be insufficient till after the time at which the quota ought to 
 have been paid; and then, after so long a delay, the means 
 of procuring money, which ought to have been employed in the 
 first instance, must be recurred to. May they not be amused by 
 such ineffectual and temporizing alternatives from year to 
 year, until America shall be enslaved? The failure in one 
 state will authorize a failure in another. The calculation in 
 some states that others will fail will produce general failures. 
 This will also be attended with all the expenses which we are 
 anxious to avoid. What are the advantages to induce us to 
 embrace this system? If they mean that requisitions should 
 be complied with, it will be the same as if Congress had the 
 power of direct taxation. The same amount will be paid by 
 the people. 
 
 It is objected that Congress will not know how to lay taxes, 
 so as to be easy and convenient for the people at large. Let 
 us pay strict attention to this objection. If it appears to be 
 totally without foundation, the necessity of levying direct 
 taxes will obviate what the gentleman says; nor will there be 
 any color for refusing to grant the power. 
 
 The objects of direct taxes are well understood; they are 
 but few; what are they? Lands, slaves, stock of all kinds, 
 and a few other articles of domestic property. Can you be 
 lieve that ten men, selected from all parts of the state, chosen 
 because they know the situation of the people, will be unable 
 to determine so as to make the tax equal on, and convenient 
 
DOCTRINES OF JOHN MARSHALL 261 
 
 for, the people at large? Does any man believe that they 
 would lay the tax without the aid of other information be 
 sides their own knowledge, when they know that the very 
 object for which they are elected is to lay the taxes in a judi 
 cious and convenient manner? If they wish to retain the affec 
 tions of the people at large, will they not inform themselves 
 of every circumstance that can throw light on the subject? 
 Have they but one source of information? Besides their own 
 experience their knowledge of what will suit their constit 
 uents they will have the benefit of the knowledge and ex 
 perience of the state legislature. They will see in what manner 
 the legislature of Virginia collects its taxes. Will they be un 
 able to follow their example? The gentlemen who shall be 
 delegated to Congress will have every source of information 
 that the legislatures of the states can have, and can lay the 
 taxes as equally on the people, and with as little oppression 
 as they can. If, then, it be admitted that they can understand 
 how to lay them equally and conveniently, are we to admit 
 that they will not do it, but that in violation of every principle 
 that ought to govern men, they will lay them so as to oppress 
 us? What benefit will they have by it? Will it be promo- 
 tive of their reelection? Will it be by wantonly imposing 
 hardships and difficulties on the people at large, that they will 
 promote their own interest, and secure their reelections? To 
 me it appears incontrovertible that they will settle them in such 
 a manner as to be easy for the people. Is the system so organ 
 ized as to make taxation dangerous? I shall not go to the 
 various checks of the government, but examine whether the 
 immediate representation of the people be well constructed. 
 I conceive its organization to be sufficiently satisfactory to the 
 warmest friend of freedom. No tax can be laid without the 
 consent of the House of Representatives. If there be no im 
 propriety in the mode of electing the representatives, can any 
 danger be apprehended? They are elected by those who can 
 elect representatives in the state legislature. How can the 
 votes of the electors be influenced? By nothing but the char 
 acter and conduct of the man they vote for. What object can 
 influence them when about choosing him ? They have nothing 
 to direct them in the choice but their own good. Have you 
 not as pointed and strong a security as you can possibly have? 
 It is a mode that secures an impossibility of being corrupted. 
 
262 THE POLITICAL AND ECONOMIC 
 
 If they are to be chosen for their wisdom, virtue, and integ 
 rity, what inducement have they to infringe on our freedom? 
 We are told that they may abuse their power. Are there 
 strong motives to prompt them to abuse it? Will not such 
 abuse militate against their own interests ? Will not they and 
 their friends feel the effects of iniquitous measures? Does 
 the representative remain in office for life? Does he trans 
 mit his title to his son? Is he secured from the burden im 
 posed on the community? To procure their reelection, it will 
 be necessary for them to confer with the people at large, and 
 convince them that the taxes laid are for their good. If I am 
 able to judge on the subject, the power of taxation now before 
 us is wisely conceded, and the representatives are wisely 
 elected. 
 
 The honorable gentleman said that a government should ever 
 depend on the affections of the people. It must be so. It is 
 the best support it can have. This government merits the 
 confidence of the people, and I make no doubt, will have it. 
 Then he informed us again of the disposition of Spain with 
 respect to the Mississippi, and the conduct of the government 
 with regard to it. To the debility of the Confederation alone 
 may justly be imputed every cause of complaint on this subject. 
 Whenever gentlemen will bring forward their objections, I 
 trust we can prove that no danger to the navigation of that 
 river can arise from the adoption of this Constitution. I beg 
 those gentlemen who may be affected by it, to suspend their 
 judgment till they hear it discussed. Will, says he, the adop 
 tion of this Constitution pay our debts? It will compel the 
 states to pay their quotas. Without this, Virginia will be un 
 able to pay. Unless all the states pay, she cannot. Though 
 the states will not coin money (as we are told) yet this govern 
 ment will bring forth and proportion all the strength of the 
 Union. That economy and industry are essential to our 
 happiness, will be denied by no man. But the present govern 
 ment will not add to our industry. It takes away the incite 
 ments to industry, by rendering property insecure and 
 unprotected. It is the paper on your table that will promote 
 and encourage industry. New Hampshire and Rhode Island 
 have rejected it, he tells us. New Hampshire, if my informa 
 tion be right, will certainly adopt it. The report spread in this 
 country, of which I have heard, is, that the representatives of 
 
DOCTRINES OF JOHN MARSHALL 263 
 
 that state having, on meeting, found they were instructed to 
 vote against it, returned to their constitutents without deter 
 mining the question, to convince them of their being mistaken, 
 and of the propriety of adopting it. 
 
 The extent of the country is urged as another objection, 
 as being too great for a republican government. This objec 
 tion has been handed from author to author, and has been cer 
 tainly misunderstood and misapplied. To what does it owe 
 its source? To observations and criticisms on governments, 
 where representation did not exist. As to the legislative 
 power, was it ever supposed inadequate to any extent? Ex 
 tent of country may render it difficult to execute the laws, but 
 not to legislate. Extent of country does not extend the power. 
 What will be sufficiently energetic and operative in a small 
 territory, will be feeble when extended over a wide-extended 
 country. The gentleman tells us there are no checks in this 
 plan. What has become of his enthusiastic eulogium on the 
 American spirit? We should find a check and control, when 
 oppressed, from that source. In this country, there is no ex 
 clusive personal stock of interest. The interest of the com 
 munity is blended and inseparably connected with that aid of 
 the individual. When he promotes his own, he promotes that 
 of the community. When we consult the common good, we 
 consult our own. When he desires such checks as these, he 
 will find them abundantly here. They are the best of checks. 
 What has become of his eulogium on the Virginia Constitu 
 tion? Do the checks in this plan appear less excellent than 
 those of the Constitution of Virginia? If the checks in the 
 Constitution be compared to the checks in the Virginia Con 
 stitution, he will find the best security in the former. 
 
 The temple of liberty was complete, said he, when the people 
 of England said to their king, that he was their servant. 
 What are we to learn from this? Shall we embrace such a 
 system as that ? Is not liberty secure with us, where the people 
 hold all powers in their own hands, and delegate them cau 
 tiously, for short periods, to their servants, who are accountable 
 for the smallest trial-administration ? Where is the nation 
 that can boast greater security than we do? We want only 
 a system like the paper before you, to strengthen and per 
 petuate this security. 
 
 The honorable gentleman has asked if there be any safety 
 
264 THE POLITICAL AND ECONOMIC 
 
 or freedom, when we give away the sword and the purse. 
 Shall the people at large hold the sword and the purse without 
 the interposition of their representatives? Can the whole ag 
 gregate community act personally? I apprehend that every 
 gentleman will see the impossibility of this. Must they, then, 
 not trust them to others? To whom are they to trust them 
 but to their representatives, who are accountable for their con 
 duct ? He represents secrecy as unnecessary, and produces the 
 British government as a proof of its inutility. Is there no 
 secrecy there? When deliberating on the propriety of de 
 claring war, or on military arrangements, do they deliberate 
 in the open fields ? No, sir. The British government affords 
 secrecy when necessary, and so ought every government. In 
 this plan, secrecy is only used when it would be fatal and per 
 nicious to publish the schemes of government. We are 
 threatened with the loss of our liberties by the possible abuse 
 of power, notwithstanding the maxim, that those who give may 
 take away. It is the people that give power, and can take it 
 back. What shall restrain them ? They are the masters who 
 give it, and for whom their servants hold it. 
 
 He then argues against the system, because it does not 
 resemble the British government in this that the same power 
 that declares war has not the means of carrying it on. Are 
 the people of England more secure, if the Commons have no 
 voice in declaring war? or are we less secure by having the 
 Senate joined with the President? It is an absurdity, says 
 the worthy member, that the same man should obey two mas 
 ters that the same collector should gather taxes for the 
 general government and the state legislature. Are they not 
 both the servants of the people? Are not Congress and the 
 state legislatures the agents of the people, and are they not 
 to consult the good of the people? May not this be effected 
 by giving the same officer the collection of both taxes? He 
 tells you that it is an absurdity to adopt before you amend. 
 Is the object of your adoption to mend solely? The objects 
 of your adoption are union, safety against foreign enemies, 
 and protection against faction against what has been the 
 destruction of all republics. These impel you to its adop 
 tion. If you adopt it, what shall restrain you from amending 
 it, if, in trying it, amendments shall be found necessary ? The 
 government is not supported by force, but depends on our 
 
DOCTRINES OF JOHN MARSHALL 265 
 
 free will. When experience shall show us any inconveniences, 
 we can then correct it. But until we have experience on the 
 subject, amendments, as well as the Constitution itself, are to 
 try. Let us try it, and keep our hands free to change it when 
 necessary. If it be necessary to change government, let us 
 change that government which has been found to be defective. 
 The difficulty we find in amending the Confederation will not 
 be found in amending this Constitution. Any amendments, 
 in the system before you, will not go to a radical change; a 
 plain way is pointed out for the purpose. All will be interested 
 to change it, and therefore all exert themselves in getting 
 the change. There is such a diversity of sentiment in human 
 minds, that it is impossible we shall ever concur in one sys 
 tem till we try it. The power given to the general govern 
 ment over the time, place, and manner of election, is also 
 strongly objected to. When we come to that clause we can 
 prove it is highly necessary, and not dangerous. 
 
 The worthy member has concluded his observations by 
 many eulogiums on the British constitution. It matters not 
 to us whether it be a wise one or not. I think that, for Amer 
 ica at least, the government on your table is very much su 
 perior to it. I ask you if your House of Representatives 
 would be better than it is, if a hundredth part of the people 
 were to elect a majority of them. If your Senators were for 
 life, would they be more agreeable to you? If your President 
 were not accountable to you for his conduct, if it were a 
 constitutional maxim, that he could do no wrong, would you 
 be safer than you are now? If you can answer, Yes, to these 
 questions, then adopt the British constitution. If not, then, 
 good as that government may be, this is better. The worthy 
 gentleman who was last up, said the confederacies of ancient 
 and modern times were not similar to ours, and that conse 
 quently reasons which applied against them could not be urged 
 against it. Do they not hold out one lesson very useful to 
 us? However unlike in other respects, they resemble it in 
 its total inefficacy. They warn us to shun their calamities, 
 and place in our government those necessary powers, the want 
 of which destroyed them. I hope we shall avail ourselves 
 of their misfortunes, without experiencing them. There was 
 something peculiar in one observation he made. He said that 
 those who governed the cantons of Switzerland were purchased 
 
266 THE POLITICAL AND ECONOMIC 
 
 by foreign powers, which was the cause of their uneasiness 
 and trouble. 
 
 How does this apply to us? If we adopt such a govern 
 ment as theirs, will it not be subject to the same inconvenience? 
 Will not the same cause produce the same effect ? What shall 
 protect us from it? What is our security? He then pro 
 ceeded to say that the causes of war are removed from us ; that 
 we are separated by the sea from the powers of Europe, and 
 need not be alarmed. Sir, the sea makes them neighbors to us. 
 Though an immense ocean divides us, we may speedily see 
 them with us. What dangers may we not apprehend to our 
 commerce? Does not our naval weakness invite an attack 
 on our commerce? May not the Algerines seize our vessels? 
 Cannot they, and every other predatory or maritime nation, 
 pillage our ships and destroy our commerce, without subject 
 ing themselves to any inconvenience ? He would, he said, give 
 the general government all necessary powers. If anything 
 be necessary, it must be so to call forth the strength of the 
 Union when we may be attacked, or when the general purposes 
 of America require it. The worthy gentleman then proceeded 
 to show, that our present exigencies are greater than they will 
 ever be again. 
 
 Who can penetrate into futurity? How can any man pre 
 tend to say that our future exigencies will be less than our 
 present ? The exigencies of nations have been generally com 
 mensurate to their resources. It would be the utmost impolicy 
 to trust to a mere possibility of not being attacked, or obliged 
 to exert the strength of the community. He then spoke of 
 a selection of particular objects by Congress, which he .says 
 must necessarily be oppressive; that Congress, for instance, 
 might select taxes, and that all but landholders would escape. 
 Cannot Congress regulate the taxes so as to be equal on all 
 parts of the community? Where is the absurdity of having 
 thirteen revenues ? Will they clash with, or injure, each other ? 
 If not, why cannot Congress make thirteen distinct laws, and 
 impose the taxes on the general objects of taxation in each 
 state, so that all persons of the society shall pay equally, as they 
 ought ? 
 
 He then told you that your Continental government will 
 call forth the virtue and talents of America. This being the 
 case, will they encroach on the power of the state govern- 
 
DOCTRINES OF JOHN MARSHALL 267 
 
 ments? Will our most virtuous and able citizens wantonly 
 attempt to destroy the liberty of the people? Will the most 
 virtuous act the most wickedly? I differ in opinion from the 
 worthy gentleman. I think the virtue and talents of the mem 
 bers of the general government will tend to the security, in 
 stead of the destruction, of our liberty. I think that the 
 power of direct taxation is essential to the existence of the 
 general government, and that it is safe to grant it. If this 
 power be not necessary, and as safe from abuse as any dele 
 gated power can possibly be, then I say that the plan before 
 you is unnecessary; for it imports not what system we have, 
 unless it have the power of protecting us in time of peace and 
 war. 
 
 SPEECH OF JOHN MARSHALL 
 
 Delivered in the Virginia Convention, June 28, 1788. The ist and 2d 
 
 sections of the 3d Article of the Constitution being under 
 
 consideration 
 
 Mr. Chairman : This part of the plan before us is a great 
 improvement on that system from which we are now departing. 
 Here are tribunals appointed for the decision of controversies 
 which were before either not at all, or improperly, provided 
 for. That many benefits will result from this to the members 
 of the collective society, every one confesses. Unless its or 
 ganization be defective, and so constructed as to injure, in 
 stead of accommodating, the convenience of the people, it merits 
 our approbation. After such a candid and fair discussion 
 by those gentlemen who support it, after the very able 
 manner in which they have investigated and examined it, I 
 conceived it would be no longer considered as so very defective, 
 and that those who opposed it would be convinced of the im 
 propriety of some of their objections. But I perceive they still 
 continue the same opposition. Gentlemen have gone on an 
 idea that the federal courts will not determine the causes 
 which may come before them with the same fairness and im 
 partiality with which other courts decide. What are the 
 reasons of this supposition? Do they draw them from the 
 manner in which the judges are chosen, or the tenure of their 
 office? What is it that makes us trust our judges? Their 
 independence in office, and manner of appointment. Are not 
 the judges of the federal chosen with as much wisdom as the 
 
268 THE POLITICAL AND ECONOMIC 
 
 judges of the state governments? Are they not equally, if not 
 more independent? If so, shall we not conclude that they will 
 decide with equal impartiality and candor? If there be as 
 much wisdom and knowledge in the United States as in a 
 particular state, shall we conclude that the wisdom and knowl 
 edge will not be equally exercised in the selection of judges? 
 
 The principle on which they object to the federal jurisdic 
 tion seems, to me, to be founded on a belief that there will 
 not be a fair trial had in those courts. If this committee will 
 consider it fully, they will find it has no foundation, and that 
 we are as secure there as any where else. What mischief re 
 sults from some causes being tried there? Is there not the 
 utmost reason to conclude that judges, wisely appointed, and 
 independent in their office, will never countenance any unfair 
 trial? What are the subjects of its jurisdiction? Let us ex 
 amine them with an expectation that causes will be as candidly 
 tried there as elsewhere, and then determine. The objection 
 which was made by the honorable member who was 
 first up yesterday [Mr. Mason] has been so fully re 
 futed that it is not worth while to notice it. He ob 
 jected to Congress having power to create a number 
 of inferior courts, according to the necessity of public 
 circumstances. I had an apprehension that those gentle 
 men who placed no confidence in Congress would object 
 that there might be no inferior courts. I own that I thought 
 those gentlemen would think there would be no inferior courts, 
 as it depended on the will of Congress, but that we should be 
 dragged to the centre of the Union. But I did not conceive 
 that the power of increasing the number of courts could be 
 objected to by any gentleman, as it would remove the incon 
 venience of being dragged to the centre of the United States. 
 I own that the power of creating a number of courts is, in my 
 estimation, so far from being a defect, that it seems necessary 
 to the perfection of this system. After having objected to the 
 number and mode, he objected to the subject matter of their 
 cognizance. [Here Mr. Marshall read the 2d section.] 
 
 These, sir, are the points of federal jurisdiction to which 
 he objects, with few exceptions. Let us examine each of them 
 with a supposition that the same partiality will be observed 
 there as in other courts, and then see if any mischief will re 
 sult from them. With respect to its cognizance in all cases 
 
DOCTRINES OF JOHN MARSHALL 269 
 
 arising under the Constitution and the laws of the United 
 States, he says that, the laws of the United States being 
 paramount to the laws of the particular states, there is no case 
 but what this will extend to. Has the government of the 
 United States power to make laws on every subject? Does he 
 understand it so? Can they make laws affecting the mode of 
 transferring property, or contracts, or claims, between citizens 
 of the same state ? Can they go beyond the delegated powers ? 
 If they were to make a law not warranted by any of the 
 powers enumerated, it would be considered by the judges as 
 an infringement of the Constitution which they are to guard. 
 They would not consider such a law as coming under their 
 jurisdiction. They would declare it void. It will annihilate 
 the state courts, says the honorable gentleman. Does not 
 every gentleman here know that the causes in our courts are 
 more numerous than they can decide, according to their pres 
 ent construction? Look at the dockets. You will find them 
 crowded with suits, which the life of man will not see deter 
 mined. If some of these suits be carried to other courts, 
 will it be wrong? They will still have business enough. 
 
 Then there is no danger that particular subjects, small in 
 proportion, being taken out of the jurisdiction of the state 
 judiciaries, will render them useless and of no effect. Does 
 the gentleman think that the state courts will have no cog 
 nizance of cases not mentioned here? Are there any words 
 in this Constitution which exclude the courts of the states 
 from those cases which they now possess? Does the gentle 
 man imagine this to be the case? Will any gentleman believe 
 it? Are not controversies respecting lands claimed under the 
 grants of different states the only controversies between citi 
 zens of the same state which the federal judiciary can take 
 cognizance of? The case is so clear, that to prove it would 
 be a useless waste of time. The state courts will not lose the 
 jurisdiction of the causes they now decide. They have a con 
 currence of jurisdiction with the federal courts in those cases 
 in which the latter have cognizance. 
 
 How disgraceful is it that the state courts cannot be trusted ! 
 says the honorable gentleman. What is the language of the 
 Constitution? Does it take away their jurisdiction? Is it 
 not necessary that the federal courts should have cognizance 
 of cases arising under the Constitution, and the laws, of the 
 
270 THE POLITICAL AND ECONOMIC 
 
 United States? What is the service or purpose of a judiciary, 
 but to execute the laws in a peacable, orderly manner, without 
 shedding blood, or creating a contest, or availing yourselves 
 of force? If this be the case, where^ can its jurisdiction be 
 more necessary than here? 
 
 To what quarter will you look for protection from an in 
 fringement on the Constitution, if you will not give the power 
 to the judiciary? There is no other body that can afford such 
 a protection. But the honorable member objects to it, because 
 he says that the officers of the government will be screened 
 from merited punishment by the federal judiciary. The fed 
 eral sheriff, says he, will go into a poor man s house and beat 
 him, or abuse his family, and the federal court will protect 
 him. Does any gentleman believe this? Is it necessary that 
 the officers will commit a trespass on the property or persons 
 of those with whom they are to transact business? Will such 
 ;.. great insults on the people of this country be allowable ? Were 
 a law made to authorize them, it would be void. The in 
 jured man would trust to a tribunal in his neighborhood. To 
 such a tribunal he would apply for redress, and get it. There 
 is no reason to fear that he would not meet that justice there 
 which his country will be ever willing to maintain. But, on 
 appeal, says the honorable gentleman, what chance is there to 
 obtain justice? This is founded on an idea that they will not 
 be impartial. There is no clause in the Constitution which 
 bars the individual member injured from applying to the state 
 courts to give him redress. He says that there is no instance 
 of appeals as to fact in common-law cases. The contrary is 
 well known to you, Mr. Chairman, to be the case in this com 
 monwealth. With respect to mills, roads, and other cases, 
 appeals lie from the inferior to the superior court, as to 
 fact as well as law. Is it a clear case, that there can be no case 
 in common law in which an appeal as to fact might be proper 
 and necessary ? Can you not conceive a case where it would be 
 productive of advantages to the people at large to submit to 
 that tribunal the final determination, involving facts as well as 
 law? Suppose it should be deemed for the convenience of the 
 citizens that those things which concerned foreign ministers 
 should be tried in the inferior courts; if justice could be done, 
 the decision would satisfy all. But if an appeal in matters 
 of facts could not be carried to the superior court, then it 
 
DOCTRINES OF JOHN MARSHALL 271 
 
 would result that such cases could not be tried before the in 
 ferior courts, for fear of injurious and partial decisions. 
 
 But, sir, where is the necessity of discriminating between the 
 three cases of chancery, admiralty, and common law? Why 
 not leave it to Congress ? Will it enlarge their powers ? Is it 
 necessary for them wantonly to infringe your rights? Have 
 you any thing to apprehend, when they can in no case abuse 
 their power without rendering themselves hateful to the peo 
 ple at large? When this is the case, something may be left 
 to the legislature freely chosen by ourselves, from among our 
 selves, who are to share the burdens imposed upon the com 
 munity, and who can be changed at our pleasure. Where 
 power may be trusted, and there is no motive to abuse it, it 
 seems to me to be as well to leave it undetermined as to fix 
 it in the Constitution. 
 
 With respect to disputes between a state and the citizens 
 of another state, its jurisdiction has been decried with unusual 
 vehemence. I hope that no gentleman will think that a state 
 will be called at the bar of the federal court. Is there no such 
 case at present ? Are there not many cases in which the legis 
 lature of Virginia is a party, and yet the state is not sued? 
 Is it not rational to suppose that the sovereign power should 
 be dragged before a court. The intent is, to enable states to 
 recover claims of individuals residing in other states. I con 
 tend this construction is warranted by the words. But, say 
 they, there will be partiality in it if a state cannot be defendant 
 - if an individual cannot proceed to obtain judgment against 
 a state, though he may be sued by a state. It is necessary to 
 be so, and cannot be avoided. I see a difficulty in making a 
 state defendant, which does not prevent its being plaintiff. If 
 this be only what cannot be avoided, why object to the system 
 on that account? If an individual has a just claim against 
 any particular state, is it to be presumed that, on application 
 to its legislature, he will not obtain satisfaction? But how 
 could a state recover any claim from a citizen of another state, 
 without the establishment of these tribunals? 
 
 The honorable member objects to suits being instituted in 
 the federal courts, by the citizens of one state, against the citi 
 zens of another state. Were I to contend that this was neces 
 sary in all cases, and that the government without it would 
 be defective, I should not use my own judgment. But are not 
 
272 THE POLITICAL AND ECONOMIC 
 
 the objections to it carried too far? Though it may not in 
 general be absolutely necessary, a case may happen, as has been 
 observed, in which a citizen of one state ought to be able to 
 recur to this tribunal, to recover a claim from the citizen of 
 another state. What is the evil which this can produce? Will 
 he get more than justice there? The independence of the 
 judge forbids it. What has he to get? Justice. Shall we 
 object to this, because the citizens of another state can obtain 
 justice without applying to our state courts? It may be neces 
 sary with respect to the laws and regulations of commerce, 
 which Congress may make. It may be necessary in cases of 
 debt, and some other controversies. In claims for land, it is 
 not necessary, but it is not dangerous. In the court of which 
 state will it be instituted? said the honorable gentleman. It 
 will be instituted in the court of the state where the defendant 
 resides, where the law can come at him, and nowhere else. 
 By the laws of which state will it be determined ? said he. By 
 the laws of the state where the contract was made. According 
 to those laws, and those only, can it be decided. Is this a 
 novelty ? No ; it is a principle in the jurisprudence of this com 
 monwealth. If a man contracted a debt in the East Indies, 
 and it was sued for here, the decision must be consonant to the 
 laws of that country. Suppose a contract made in Maryland, 
 where the annual interest is at six per centum, and a suit in 
 stituted for it in Virginia; what interest would be given now, 
 without any federal aid ? The interest of Maryland most cer 
 tainly; and if the contract had been made in Virginia, and suit 
 brought in Maryland, the interest of Virginia must be given, 
 without doubt. It is now to be governed by the laws of that 
 state where the contract was made. The laws which governed 
 the contract at its formation govern it in its decision. To 
 preserve the peace of the Union only, its jurisdiction in this 
 case ought to be recurred to. Let us consider that, when the 
 citizens of one state carry on trade in another state, much must 
 be due to the one from the other, as is the case between 
 North Carolina and Virginia. Would not the refusal of jus 
 tice to our citizens, from the courts of North Carolina, produce 
 disputes between the states? Would the federal judiciary 
 swerve from their duty in order to give partial and unjust 
 decisions? 
 
 The objection respecting the assignment of a bond to a 
 
DOCTRINES OF JOHN MARSHALL 273 
 
 citizen of another state has been fully answered. But sup 
 pose it were to be tried, as he says ; what would be given more 
 than was actually due in the case mentioned? It is possible 
 in our courts, as they now stand, to obtain a judgment for more 
 than justice. But the court of chancery grants relief. Would 
 it not be so in the federal court? Would not depositions be 
 taken to prove the payments, and if proved, would not the 
 decision of the court be accordingly? 
 
 He objects, in the next place, to its jurisdiction in contro 
 versies between a state and a foreign state. Suppose, says he, 
 in such a suit, a foreign state is cast ; will she be bound by the 
 decision? If a foreign state brought a suit against the com 
 monwealth of Virginia, would she not be barred from the 
 claim if the federal judiciary thought it unjust? The previous 
 consent of the parties is necessary; and, as the federal judi 
 ciary will decide, each party will aquiesce. It will be the 
 means of preventing disputes with foreign nations. On an at 
 tentive consideration of these points, I trust every part will ap 
 pear satisfactory to the committee. 
 
 The exclusion of trial by jury, in this case, he urged to 
 prostrate our rights. Does the word court only mean the 
 judges? Does not the determination of a jury necessarily 
 lead to the judgment of the court? Is there any thing here 
 which gives the judges exclusive jurisdiction of matters of 
 fact? What is the object of a jury trial? To inform the 
 court of the facts. When a court has cognizance of facts, 
 does it not follow that they can make inquiry by a jury? It 
 is impossible to be otherwise. I hope that in this country, 
 where impartiality is so much admired, the laws will direct 
 facts to be ascertained by a jury. But, says the honorable 
 gentleman, the juries in the ten miles square will be mere tools 
 of parties, with which he would not trust his person or prop 
 erty ; which, he says, he would rather leave to the court. Be 
 cause the government may have a district of ten miles square, 
 will no man stay there but the tools and officers of the govern 
 ment ? Will nobody else be found there ? Is it so in any other 
 part of the world, where a government has legislative power? 
 Are there none but officers, and tools of the government of 
 Virginia, in Richmond? Will there not be independent mer 
 chants, and respectable gentlemen of fortune, within the ten 
 miles square? Will there not be worthy farmers and median- 
 
274 THE POLITICAL AND ECONOMIC 
 
 ics? Will not a good jury be found there, as well as any 
 where else? Will the officers of the government become 
 improper to be on a jury? What is it to the government 
 whether this man or that man succeeds? It is all one thing. 
 Does the Constitution say that juries shall consist of officers, 
 or that the Supreme Court shall be held in the ten miles square ? 
 It was acknowledged, by the honorable member, that it was 
 secure in England. What makes it secure there? Is it their 
 constitution? What part of their constitution is there that the 
 Parliament cannot change? As the preservation of this 
 right is in the hands of Parliament, and it has ever been held 
 sacred by them, will the government of America be less honest 
 than that of Great Britain ? Here a restriction is to be found. 
 The jury is not to be brought out of the state. There is no 
 such restriction in that government; for the laws of Parlia 
 ment decide every thing respecting it. Yet gentlemen tell us 
 that there is safety there, and nothing here but danger. It 
 seems to me that the laws of the United States will generally 
 secure trials by a jury of the vicinage, or in such manner as 
 will be most safe and convenient for the people. 
 
 But it seems that the right of challenging the jurors is not 
 secured in this Constitution. Is this done by our own Consti 
 tution, or by any provision of the English government? Is 
 it done by their Magna Charta, or bill of rights? This privi 
 lege is founded on their laws. If so, why should it be ob 
 jected to the American Constitution that it is not inserted in 
 it? If we are secure in Virginia without mentioning it in our 
 Constitution, why should not this security be found in the 
 federal court? 
 
 The honorable gentleman said much about the quitrents 
 in the Northern Neck. I will refer it to the honorable gentle 
 man himself. Has he not acknowledged that there was no 
 complete title? Was he not satisfied that the right of the 
 legal representative of the proprietor did not exist at the 
 time he mentioned? If so, it cannot exist now. I will leave 
 it to those gentlemen who come from that quarter. I trust 
 they will not be intimidated, on this account, in voting on this 
 question. A law passed in 1782, which secures this. He says 
 that many poor men may be harassed and injured by the rep 
 resentatives of Lord Fairfax. If he has no right, this cannot 
 be done. If he has this right, and comes to Virginia, what 
 
DOCTRINES OF JOHN MARSHALL 275 
 
 laws will his claims be determined by? By those of this state. 
 By what tribunals will they be determined? By our state 
 courts. Would not the poor man, who was oppressed by an 
 unjust prosecution, be abundantly protected and satisfied by 
 the temper of his neighbors, and would he not find ample 
 justice? What reason has the honorable member to appre 
 hend partiality or injustice? He supposes that, if the judges 
 be judges of both the federal and state courts, they will incline 
 in favor of one government. If such contests should arise, 
 who could more properly decide them than those who are to 
 swear to do justice? If we can expect a fair decision any 
 where, may we not expect justice to be done by the judges 
 of both the federal and state governments? But, says the 
 honorable member, laws may be executed tyrannically. Where 
 is the independency of your judges? If a law be exercised 
 tyrannically in Virginia, to what can you trust? To your 
 judiciary. What security have you for justice? Their inde 
 pendence. Will it not be so in the federal court ? 
 
 Gentlemen ask, What is meant by law cases, and if they be 
 not distinct from facts? Is there no law arising on cases of 
 equity and admiralty? Look at the acts of Assembly. Have 
 you not many cases where law and fact are blended ? Does not 
 the jurisdiction in point of law as well as fact, find itself com 
 pletely satisfied in law and fact? The honorable gentleman 
 says that no law of Congress can make any exception to the 
 federal appellate jurisdiction of facts as well as law. He has 
 frequently spoken of technical terms, and the meaning of them. 
 What is the meaning of the term exception? Does it not 
 mean an alteration and diminution? Congress is empowered 
 to make exceptions to the appellate jurisdiction, as to law and 
 fact, of the Supreme Court. These exceptions certainly go 
 as far as the legislature may think proper for the interest 
 and liberty of the people. Who can understand this word, ex 
 ception, to extend to one case as well as the other? I am per 
 suaded that a reconsideration of this case will convince the 
 gentleman that he was mistaken. This may go to the cure of 
 the mischief apprehended. Gentlemen must be satisfied that 
 this power will not be so much abused as they have said. 
 
 The honorable member says that he derives no consolation 
 from the wisdom and integrity of the legislature, because we 
 call them to rectify defects which it is our duty to remove. We 
 
276 THE POLITICAL AND ECONOMIC 
 
 ought well to weigh the good and evil before we determine. 
 We ought to be well convinced that the evil will be really 
 produced before we decide against it. If we be convinced 
 that the good greatly preponderates, though there be small 
 defects in it, shall we give up that which is really good, when 
 we can remove the little mischief it may contain, in the plain, 
 easy method pointed out in the system itself? 
 
 I was astonished when I heard the honorable gentleman 
 say that he wished the trial by jury to be struck out entirely. 
 Is there no justice to be expected by a jury of our fellow 
 citizens? Will any man prefer to be tried by a court, when 
 the jury is to be of his countrymen, and probably of his vici 
 nage? We have reason to believe the regulations with respect 
 to juries will be such as shall be satisfactory. Because it 
 does not contain all, does it contain nothing? But I conceive 
 that this committee will see there is safety in the case, and 
 that there is no mischief to be apprehended. 
 
 He states a case, that a man may be carried from a federal 
 to an anti-federal corner (and vice versa) where men are ready 
 to destroy him. Is this probable? Is it presumable that they 
 will make a law to punish men who are of different opinions 
 in politics from themselves? Is it presumable that they will 
 do it in one single case, unless it be such a case as must satisfy 
 the people at large? The good opinion of the people at large 
 must be consulted by their representatives; otherwise, mis 
 chiefs would be produced which would shake the government 
 to its foundation. As it is late, I shall not mention all the 
 gentleman s argument, but some parts of it are so glaring 
 that I cannot pass them over in silence. He says that the es 
 tablishment of these tribunals, and more particularly in their 
 jurisdiction of controversies between citizens of these states 
 and foreign citizens and subjects, is like a retrospective law. 
 Is there no difference between a tribunal which shall give jus 
 tice and effect to an existing right, and creating a right that 
 did not exist before? The debt or claim is created by the 
 individual. He has bound himself to comply with it. Does 
 the creation of a new court amount to a retrospective law ? 
 
 We are satisfied with the provision made in this country 
 on the subject of trial by jury. Does our Constitution direct 
 trials to be by jury? It is required in our bill of rights, which 
 is not a part of the Constitution. Does any security arise 
 
DOCTRINES OF JOHN MARSHALL 277 
 
 from hence ? Have you a jury when a judgment is obtained on 
 replevin bond, or by default ? Have you a jury when a motion 
 is made for the commonwealth against an individual ; or when 
 a motion is made by one joint obligor against another, to re 
 cover sums paid as security? Our courts decide in all these 
 cases, without the intervention of a jury; yet they are all 
 civil cases. The bill of rights is merely recommendatory. 
 Were it otherwise, the consequence would be that many laws 
 which are found convenient would be unconstitutional. What 
 does the government before you say? Does it exclude the 
 legislature from giving a trial by jury in civil cases? If it 
 does not forbid its exclusion, it is on the same footing on 
 which your state government stands now. The legislature of 
 Virginia does not give a trial by jury where it is not necessary, 
 but gives it wherever it is thought expedient. The federal leg 
 islature will do so too, as it is formed on the same princi 
 ples. 
 
 The honorable gentleman says that unjust claims will be 
 made, and the defendant had better pay .them than go to the 
 Supreme Court. Can you suppose such a disposition in one of 
 your citizens, as that, to oppose another man, he will incur 
 great expenses? What will he gain by an unjust demand? 
 Does a claim establish a right? He must bring his witnesses 
 to prove his claim. If he does not bring his witnesses, the 
 expenses must fall upon him. Will he go on a calculation 
 that the defendant will not defend it, or cannot produce a 
 witness? Will he incur a great deal of expense, from a de 
 pendence on such a chance? Those who know human nature, 
 black as it is, must know that mankind are too well attached 
 to their interest to run such a risk. I conceive that this power 
 is absolutely necessary, and not dangerous ; that, should it be 
 attended by little inconveniences, they will be altered, and that 
 they can have no interest in not altering them. Is there any 
 real danger? When I compare it to the exercise of the same 
 power in the government of Virginia, I am persuaded there is 
 not. The federal government has no other motive, and has 
 every reason for doing right which the members of our state 
 legislatures have. Will a man on the eastern shore be sent 
 to be tried in Kentucky, or a man from Kentucky be brought 
 to the eastern shore to have his trial? A government, by do 
 ing this, would destroy itself. I am convinced the trial by 
 
278 THE POLITICAL AND ECONOMIC 
 
 jury will be regulated in the manner most advantageous to 
 the community. 
 
 SPEECH OF JOHN MARSHALL ON THE DEATH OF 
 
 WASHINGTON 
 Delivered December 18, 1799, in National House of Representatives 
 
 MR. SPEAKER: 
 
 The melancholy event which was yesterday announced 
 with doubt, has been rendered but too certain. Our 
 Washington is no more! The Hero, the Sage, and the 
 Patriot of America the man on whom, in times of danger, 
 every eye was turned, and all hopes were placed lives now 
 only in his own great actions, and in the hearts of an affec 
 tionate and afflicted people. 
 
 If, Sir, it had not been usual openly to testify respect for 
 the memory of those whom Heaven had selected as its instru 
 ments for dispensing good to men, yet such has been the un 
 common worth, and such the extraordinary incidents which 
 have marked the life of him whose loss we all deplore, that 
 the whole American nation, impelled by the same feelings, 
 would call with one voice for a public manifestation of that 
 sorrow which is so deep and so universal. 
 
 More than any other individual, and as much as to any one 
 individual was possible, has he contributed to found this, our 
 wide-spreading empire, and to give the Western world its in 
 dependence and freedom. Having effected the great object for 
 which he was placed at the head of our armies, we have seen 
 him converting the sword into the ploughshare, and voluntarily 
 sinking the soldier in the citizen^. 
 
 Having been twice unanimously chosen the Chief Magistrate 
 of a free people, we see him, at a time when his re-election, 
 with the universal, could not have been doubted, affording to 
 the world a rare instance of moderation, by withdrawing from 
 his high station to the peaceful walks of private life. 
 
 However the public confidence may change, and the public 
 affections fluctuate witfi respect to others, yet, with respect to 
 him, they have in war and in peace, in public and private life, 
 been as steady as his own firm mind, and as constant as his own 
 exalted virtues. 
 
 Let us then, Mr. Speaker, pay the last tribute of respect 
 
DOCTRINES OF JOHN MARSHALL 279 
 
 and affection to our departed friend let the Grand Council 
 of the nation display those sentiments which the nation feels- 
 For this purpose, I hold in my hand some resolutions, which 
 I will take the liberty to offer to the House. 
 
 The rumor that Washington had died reached Philadelphia 
 the day before the above speech was made, December 17. 
 On that day Marshall, " in a voice that bespoke the anguish 
 of his mind and with a countenance expressive of the deepest 
 regret," rose, and after stating the calamity that had probably 
 befallen the country, moved an adjournment of the House. 
 The next day, with " suppressed voice and deep emotion," he 
 made the above speech. When we recall how solicitous Wash 
 ington was that Marshall should become a member of Con 
 gress, and how gratified he was at his election, we cannot but 
 be struck with the circumstance that it was among the first 
 of Marshall s duties to announce the death of the illustrious 
 Washington. 
 
 The resolutions that Marshall mentioned were those drafted 
 by General Lee, the last of which described Washington as 
 " first in war, first in peace, and first in the hearts of his coun 
 trymen." 
 
CHAPTER VI 
 
 THE KERNEL OF MARSHALL S DECISIONS, THE THINGS THAT 
 
 MADE HIM THE EXPOUNDER OF THE CONSTITUTION 
 
 QUOTATIONS made from the decisions of Chief Justice Mar 
 shall show precisely what his political and economic doctrines 
 were. 
 
 THE PREAMBLE AND FORMATION OF THE CONSTITUTION 
 
 OF U. S. 
 
 In Barron v. Mayor, 1 Chief Justice Marshall gives his views 
 on the formation of the Constitution as follows: 
 
 / 
 
 The Constitution of the United States was ordained and 
 established by the people of the United States, for themselves, 
 for their own government, and not for the government of the 
 individual States. The people of the United States framed 
 such a government for the United States as they supposed 
 best adapted to their situation and best calculated to promote 
 \their interests." In the case of M Culloch v. Maryland 2 Chief 
 Justice Marshall says : " The Convention which framed the 
 Constitution was indeed, elected by the State legislatures. But 
 the instrument, when it came from their hands, was a mere 
 proposal, without obligation or pretentions to it. It was re 
 ported to the then existing Congress of the United States, 
 with a request that it might be submitted to a Convention of 
 Delegates, chosen in each State by the people thereof, under 
 the recommendation of its legislatures, for their assent and 
 ratification. This mode of proceeding was adopted; and by 
 the Convention, by Congress, and by the State Legislatures, the 
 instrument was submitted to the people. They acted upon it 
 in the only manner in which they can act safely, effectively, 
 and wisely, on such a subject, by assembling in Convention. 
 It is true, they assembled in their several States, and where 
 else should they have assembled? No political dreamer was 
 
 1 7 Peters, 247. 
 
 2 4 Wheaton, 403. 
 
 280 
 
DOCTRINES OF JOHN MARSHALL 281 
 
 ever wild enough to think of breaking down the lines which 
 separate the States, and of compounding the American people 
 into one common mass of consequence; when they act, they 
 act in their States. But the measures they adopt do not, 
 on that account, cease to be the measures of the people them 
 selves, or become the measures of the State governments. 
 
 " From these conventions the Constitution derives its whole 
 authority. The government proceeds directly from the peo^ 
 pie; is ordained and established in the name of the people; 
 and is declared to be ordained * in order to form a more perfect 
 union, establish justice, ensure domestic tranquillity, and secure 
 the blessings of liberty to them selves and to their posterity. * 
 The assent of the States, in their sovereign capacity is implied 
 in calling the Convention, and thus submitting that instrument 
 to the people. But the people were at perfect liberty to accept 
 or reject it ; and their act was final. It required not the affirm 
 ance, and could not be negatived, by the State governments. 
 The constitution as thus adopted was of complete obligation, 
 and bound the State sovereignties. 
 
 " It has been said, that the people had already surrendered 
 all their powers to the State sovereignties, and had nothing 
 more to give. But, surely, the question whether they may 
 resume and modify the powers granted to government does 
 not remain to be settled in this country. Much more might 
 the legitimacy of the general government be doubted had it 
 been created by the States. The powers delegated to the State 
 sovereignties are to be exercised by themselves and not by a 
 distinct and independent sovereignty created by themselves. 
 For the formation of a league, such as was the confederation, 
 the State sovereignties were certainly competent. But when, 
 in order to form a more perfect union, it was deemed neces 
 sary to change this alliance into an effective government, pos 
 sessing great and sovereign powers, and acting directly on the 
 people, the necessity of referring it to the people, and of deriv 
 ing its powers directly from them, was felt and acknowledged 
 by all." 
 
 INDEPENDENCE OF JUDICIARY 
 
 At the Virginia Constitutional Convention, John Marshall 
 said : 
 
284 THE POLITICAL AND ECONOMIC 
 
 power to borrow money to the credit of the United States, and 
 consequently to be repugnant to the Constitution." 
 
 TAXING UNITED STATES BANK 
 
 The basic principles upon which the doctrine of Federal tax 
 ation rests were laid down by Chief Justice Marshall in a few 
 early decisions on this subject. These early cases decided by 
 the Supreme Court have controlled very many of the later cases 
 that have come up on this subject, for the principles there estab 
 lished had great weight. The first great case of this kind was 
 that of McCulloch v. Maryland, 8 which arose in the following 
 manner : 
 
 In 1816, an act was passed by Congress, " To incorporate the 
 subscribers of the Bank of the United States." The bank was 
 subsequently established in Philadelphia, and a branch thereof 
 was also established in Baltimore. In the 1818 A. D., the 
 General Assembly of Maryland passed an act " To impose 
 a tax on all banks, or branches thereof in the State of Maryland 
 not chartered by the Legislature of that State." In passing 
 this act Maryland laid a heavy tax on the circulating notes of 
 the branch bank of the United States which was located in the 
 city of Baltimore. The bank naturally having refused pay 
 ment of the taxes, suit was brought to recover them and the 
 action of course was sustained in all the courts of Maryland. 
 The case was taken to the Supreme Court of the United States 
 thereupon, where the best legal talent of the land argued on 
 the case. Chief Justice Marshall rendered the opinion of the 
 Court which is one of the most comprehensive and profound 
 he ever delivered. 
 
 In this case there were involved two great questions, of 
 which the first was the power of Congress to charter a bank. 
 After a most thorough exposition of the authority of Congress 
 under the implied powers of the Constitution it was held that 
 Congress had the power to incorporate a bank on the ground 
 that it was one of the necessary agencies to carry out the pur 
 poses of the Government. The second question was this; could 
 the legislature of Maryland pass a law taxing the branch of a 
 bank located within that State without violating the Federal 
 Constitution? This part of the decision is the one most vital, 
 8 4 Wheaton, 316. 
 
DOCTRINES OF JOHN MARSHALL 285 
 
 and began by saying : " That the power of taxation is one of 
 vital importance ; that it is retained by the States ; that it is not 
 abridged by the grant of a similar power to the government of 
 the Union; that it is to be concurrently exercised by the two 
 governments; are truths which have never been denied. . . . 
 " The sovereignty of a State extends to everything which 
 exists by its own authority, or is introduced by its permission ; 
 but does it extend to those means which are employed by Con 
 gress to carry into execution power conferred on that body by 
 the people of the United States? We think it demonstrable 
 that it does not. Those powers are not given by the people of 
 a single State. They are given by the people of the United 
 States, to a government whose laws, made in pursuance of the 
 Constitution, are declared to be supreme. Consequently, thej 
 people of a single State can not confer a sovereignty which will] 
 extend over them. If we measure the power of taxation re- 1 
 siding in a State, by the extent of sovereignty which the people 
 of a single State possess, and can confer on its government, we 
 have an intelligible standard applicable to every case to which 
 the power may be applied. We have a principle which leaves 
 the power of taxing the people and property of a State unim 
 paired ; which leaves to a State the command of all its resources, 
 and which places beyond its reach, all those powers which are 
 conferred by the people of the United States on the government 
 of the Union, and all those means which are given for the pur 
 pose of carrying those powers into execution. We have a 
 principle which is safe for the States, and safe for the Union. 
 We are relieved, as we ought to be, from clashing sovereignty ; 
 from interfering powers ; from a repugnancy between a right 
 in one government to pull down what there is an acknowl 
 edged right in another to build up ; from the incompatibility of 
 a right in one government to destroy what there is a right in 
 another to preserve. We are not driven to the perplexing 
 inquiry, so unfit for the judicial department, what degree of 
 taxation is the legitimate use, and what degree may amount to 
 the abuse of the power. The attempt to use it on the means 
 employed by the government of the Union, in pursuance of the 
 Constitution, is itself an abuse, because it is the usurpation of 
 a power which the people of a single State can not give. We 
 find, then, on just theory, a total failure of this original right 
 to tax the means employed by the government of the Union, 
 
282 THE POLITICAL AND ECONOMIC 
 
 The judicial department comes home in its effects to every 
 
 man s fireside ; it passes on his property, his reputation, his life, 
 
 his all. Is it not to the last degree important that he should be 
 
 rendered perfectly and completely independent, with nothing to 
 
 control him but God and his conscience? I have always 
 
 thought from my earliest youth till now, that the greatest 
 
 |* scourge an angry Heaven ever inflicted upon an ungrateful and 
 
 l I a. sinning people was an ignorant, a corrupt, or a dependent 
 
 I judiciary." 
 
 SUITS AGAINST STATES 
 
 At the Virginia Convention 3 called to ratify the Constitu 
 tion John Marshall said : 
 
 " With respect to disputes between a State and the citizens 
 of another State, its jurisdiction has been decried with unusual 
 vehemence. I hope that no gentleman will think that A State 
 / will be called at the bar of a federal court. ... It is not ra- 
 / tional to suppose that the sovereign power should be dragged 
 before a court. The intent is to enable States to recover claims 
 of individuals residing in other States. . . . But, say they, 
 there will be partiality in it if a State cannot be defendant if 
 an individual cannot proceed to obtain judgment against a 
 State, though he may be sued by a State. It is necessary to 
 be so, and cannot be avoided. I see a difficulty in making a 
 State defendant which does not prevent its being plaintiff." 
 
 IMPLIED POWERS 
 
 In the case of United States v. Harris 4 we read that 
 " Proper respect for a co-ordinate branch of the government 
 requires the courts of the United States to give effect to the 
 presumption that Congress will pass no act not within its con 
 stitutional power. This presumption should prevail unless the 
 lack of constitutional authority to pass an act in question is 
 clearly demonstrated. While conceding this, it must, neverthe 
 less, be stated that the government of the United States is one 
 of delegated, limited and enumerated powers. Therefore every 
 valid act of Congress must find in the Constitution some war 
 rant for its passage." 
 
 3 3 " Elliot s Debates," 2d edition, 555. 
 * 106 U. S, 635 
 
DOCTRINES OF JOHN MARSHALL 283 
 
 There is nothing to be found in the Constitution which ex 
 cludes the exercise of incidental or implied powers. In McCul- , 
 loch v. Maryland 5 Chief Justice Marshall said, " If the end be / 
 legitimate and within the scope of the Constitution, all the I 
 means which are appropriate, which are plainly adapted to |\ 
 that end, and which are not prohibited, may be constitutionally \\j 
 employed to carry it into effect." 
 
 DIRECT TAXES 
 
 Scores of eminent men expressed their views on this subject, 
 but it seems no one pretended to explain fully what the ex 
 pression, " Direct Taxes," as used in the Constitution, meant. 
 John Marshall who was a member of the Constitutional Con 
 vention expressed his views more clearly on the matter than 
 any other man. He says : 
 
 " The objects of direct taxes are well understood ; they are 
 but few ; what are they? Lands, slaves, stock of all kinds, and 
 a few other articles of domestic property." 
 
 POWER OF THE STATES TO DESTROY THE GOVERNMENT 
 
 In regard to the power of the States, Chief Justice Marshall, 
 in the case of Cohens v. Virginia, gives the following opinion: 
 
 The States can put an end to the Government by refusing 
 to act. They have only not to elect Senators, and it expires 
 without a struggle." G 
 
 TAX ON INCOME FROM BONDS 
 
 In Western v. Charleston, 7 Chief Justice Marshall said: 
 " The right to tax the contract to any extent, when made, must 
 operate upon the power to borrow before it is exercised, and 
 have a sensible influence on the contract. The extent of this 
 influence depends on the will of a distinct government. To 
 any extent, however inconsiderable, it is a burthen on the op 
 erations of government. It may be carried to an extent which 
 shall arrest them entirely. . . . The tax on government stock 
 is thought by this court to be a tax on the contract, a tax on the 
 
 5 4 Wheaton, 421. 
 
 6 Wheaton, 391. 
 
 7 2 Peters, 449, 468. 
 
286 THE POLITICAL AND ECONOMIC 
 
 for the execution of its powers. The right never existed, and 
 the question whether it has been surrendered, can not arise. 
 
 " That the power to tax involves the power to destroy ; that 
 the power to destroy may defeat and render useless the power 
 to create ; that there is a plain repugnance, in conferring on one 
 government a power to control the constitutional measures of 
 another, which other, with respect to those very measures, is 
 declared to be supreme over that which exerts the control, are 
 propositions not to be denied. . . . 
 
 " If we apply the principle for which the State of Maryland 
 contends, to the Constitution generally, we shall find it capable 
 of changing totally the character of that instrument. We shall 
 find it capable of arresting all the measures of the government, 
 and of prostrating it at the foot of the States. The American 
 people have declared their Constitution, and the laws made in 
 pursuance thereof, to be supreme; but this principle would 
 transfer the supremacy, in fact, to the States. 
 
 " If the States may tax one instrument, employed by the gov 
 ernment in th execution of its powers, they may tax any and 
 every other instrument. They may tax the mail; they may 
 tax the mint; they may tax patent rights; they may tax the 
 papers of the custom house ; they may tax judicial process ; they 
 may tax all the means employed by the government, to an ex 
 cess which would defeat all the ends of government. This was 
 not intended by the American people. They did not design to 
 make their government dependent on the States." 
 
 The court reached the conclusion that the States have no 
 power, by taxation or otherwise, to retard, impede, burden, or 
 in any way control the operations of the constitutional laws 
 enacted by Congress to carry into execution the powers vested 
 in the general government. The court also held : ( i ) , That 
 the States were not deprived of resources which they originally 
 possessed. (2), That they could lay a tax upon the real 
 property of the bank, in common with other real property 
 within the State. (3), They could also impose a tax on the 
 interest which the citizens of Maryland might hold in the bank, 
 in common with other property of the same description 
 throughout the State. The pivotal question decided in this 
 branch of the case was, that a State has no power to tax an 
 agency of the general government, for, said Marshall, "the 
 power to tax involves the power to destroy," an expression 
 
DOCTRINES OF JOHN MARSHALL 287 
 
 which has since become a classic in constitutional literature. 
 This opinion established the constitutional principle that the 
 Government of the United States is supreme in power, and in 
 dependent of the States, in all matters relating to its existence, 
 and that the agencies necessary for its perpetuity are beyond 
 State control, or the power of State taxation. Coming as it did 
 at an early date in our history, from a court having a thorough, 
 and much personal knowledge concerning the formation and 
 adoption of the Constitution, and of the hopes, purposes, and 
 intentions of its framers, this opinion lifted the authority of the 
 general government from the uncertainty which had sur 
 rounded it before this, and placed it upon the solid bed-rock o>f 
 the Constitution. Here the strength and supremacy of the 
 Federal Government began, for this was the first great judicial 
 and constitutional sign-board, leading the way for the progress 
 of the Republic. The great national benefit and influence 
 have never been surpassed by any decision of any court. 
 
 A short time later, in the case of Osborn v. The United 
 States Bank, 9 a similar question was considered, the General 
 Assembly of Ohio having passed an act very similar to that of 
 Maryland in regard to the taxation of a branch of the United 
 States Bank. In this case Marshall also delivered the opinion, 
 and in it the opinion in McCulloch v. Maryland, on the subject 
 of the taxation of a government agency by a State, was re 
 viewed and affirmed, the court expressly holding that a State 
 law imposing a tax on one of the branches of a bank of the 
 United States is unconstitutional. 
 
 Just five years after the decision in Osborn v. United States 
 bank, another very important question came up before the 
 Supreme Court in the case of Weston v. The City Council of 
 Charleston, 10 which also grew out of the establishment of the 
 United States Bank, and again Justice Marshall delivered the 
 opinion of the majority of the court, for two justices dissented. 
 The case came to the Supreme Court from the State of South 
 Carolina, where the City Council of Charleston had passed an 
 ordinance under which the stock of the United States Bank was 
 made subject to taxation. The owners of the stock obtained 
 a prohibition against levying tax in the lower court of the State, 
 but this w r as reversed by the higher court and the case conse- 
 
 9 9 Wheaton, 738. 
 
 10 2 Peters, 449. 
 
288 THE POLITICAL AND ECONOMIC 
 
 quently went to the Supreme Court of the United States. The 
 main question was, could stock of the United States Bank, held 
 by an individual, be taxed under authority of the State ? In the 
 course of his opinion Marshall said : 
 
 " If the right to impose the tax exists, it is a right which in 
 its nature acknowledges no limits. It may be carried to any 
 extent within the jurisdiction of the State or corporation which 
 imposes it, which the will of each State and corporation may 
 prescribe. A power which is given by the whole American 
 people for their common good, which is to be exercised at the 
 most critical periods, for the most important purposes, on the 
 free exercise of which the interests certainly, perhaps the liberty 
 of the whole may depend, may be burdened, impeded, if not 
 arrested, by any of the organized parts of the confederacy. 
 In a society formed like ours, with one supreme government 
 for national purposes, and numerous State governments for 
 other purposes, in many respects independent, and in the un 
 controlled exercise of many important powers, occasional inter 
 ferences ought not to surprise us. The power of taxation is 
 one of the most essential to a State, and one of the 
 most extensive in its operation. The attempt to maintain 
 a rule which shall limit its exercise, is undoubtedly among 
 the most delicate and difficult duties which can devolve on 
 those whose province it is to expound the supreme law of 
 the land in its application to the cases of individuals. This 
 duty has more than once devolved on this court. In the per 
 formance of it, we have considered it as a necessary conse 
 quence, from the supremacy of the government of the whole, 
 that its action, in the exercise of its legitimate powers, should 
 be free and unembarassed by any conflicting powers in the 
 possession of its parts ; that the powers of a State can not right 
 fully be so exercised as to impede and obstruct the free course 
 of those measures which the government of the States united 
 may rightfully adopt/ 
 
 " It is not the want of original power in an independent 
 sovereign State, to prohibit loans to a foreign government, 
 which restrains the legislature from direct opposition to those 
 made by the United States. The restraint is imposed by our 
 Constitution. The American people have conferred the power 
 of borrowing money on their government, and, by making that 
 government supreme, have shielded its action, in the exercise of 
 
f> DOCTRINES OF JOHN MARSHALL 289 
 
 this power, from the action of the local governments. The 
 grant of the power is incompatible with a restraining or con 
 trolling power, and the declaration of supremacy is a declara 
 tion that no such restraining or controlling power shall be 
 exercised. The right to tax the contract to any extent, when 
 made, must operate upon the power to borrow before it is 
 exercised, and have a sensible influence on the contract. The 
 extent of this influence depends on the will of a distinct govern 
 ment. To any extent, however inconsiderable, it is a burden 
 on the operations of government. It may be carried to an ex 
 tent which shall arrest them entirely." 
 
 The court s conclusion was that a tax on Government stock 
 is a tax on the contract, on the power to borrow money on the 
 credit of the United States, and, therefore, repugnant to the 
 Constitution. 
 
 We know that the power to levy taxes and collect them is 
 inherent in every sovereignty and it is doubtful if it was neces 
 sary that the Constitution of the United States should have 
 expressly conferred this power upon Congress. It would have 
 had it independent of any Constitutional authority. 
 
 POWER OF CONGRESS TO CHARTER BANKS 
 
 In his report on the establishment of a National Bank, Mr. 
 Hamilton clearly demonstrated that the power existed in Con 
 gress to establish any agency necessary for carrying on the 
 Government. Chief Justice Marshall crystallized this doctrine 
 into law in his opinion which he delivered in the significant 
 case of McCulloch v. Maryland, 11 in which he said: 
 
 " Among the enumerated powers, we do not find that of 
 establishing a bank or creating a corporation. But there is no 
 phrase in the instrument which like the Articles of Confed 
 eration, excludes incidental or implied powers ; and which 
 requires that everything granted shall be expressly and 
 minutely described. Even the loth amendment which was 
 framed for the purpose of quieting excessive jealousies which 
 had been excited, omits the word expressly/ and declares 
 only that the powers not delegated to the United States, nor 
 prohibited to the States, are reserved to the States or to the 
 people/ thus leaving the question, whether the particular power 
 
 11 9 Wheaton, 406, 
 
290 THE POLITICAL AND ECONOMIC 
 
 which may become the subject of contest has been delegated to 
 the one government, or prohibited to the other, to depend on a 
 fair construction of the whole instrument. The men who 
 drew and adopted this amendment had experienced the em- 
 barassments resulting from the insertion of this word in the 
 Articles of Confederation, and probably omitted it to avoid 
 those embarassments." 
 
 Again (p. 421.) : " If we look to the origin of corporations, 
 to the manner in which they have been framed in that govern 
 ment from which we have derived most of our legal principles 
 and ideas, or to the uses to which they have been applied, we 
 find no reason to suppose that a constitution, omitting, and 
 wisely omitting, to enumerate all the means for carrying into 
 execution the great powers vested in government, ought to have 
 specified this. Had it been intended to grant this power as one 
 which should be distinct and independent, to be exercised in 
 any case whatever, it would have found a place among the 
 enumerated powers of the government. But being considered 
 merely as a means, to be employed only for the purpose of 
 carrying into execution the given powers, there could be no 
 motive for particularly mentioning it." 
 
 Ji ORIGINAL PACKAGES 
 
 Judson, in his " Interstate Commerce," 12 says that the " orig 
 inal package rule " was first announced in 1827 in Marshall s 
 opinion in Brown v. Maryland 13 which was a case where a 
 statute passed by the Legislature of Maryland require import 
 ers of foreign articles by the bale or package and persons 
 selling such articles in that way, to obtain a license to do so, 
 which statute was declared unconstitutional by Chief Justice 
 Marshall, who in discussing the question, admitted the diffi 
 culty of laying down any fixed rule on the subject as to when 
 the statute applied to imported articles. He said : 
 
 " It is sufficient for the present to say, generally, that when 
 the importer has so acted upon the thing imported, that it has 
 become incorporated and mixed up with the mass of property in 
 the country, it has, perhaps, lost its distinctive character as an 
 import, and has become subject to the taxing power of the 
 State ; but while remaining the property of the importer in his 
 
 12 Judson on " Interstate Commerce," sec. 16. 
 is 12 Wheaton, 441-442. 
 
DOCTRINES OF JOHN MARSHALL 291 
 
 warehouse in the original form or package in which it was 
 imported, a tax upon it is too plainly a duty on imports to 
 escape the prohibition in the Constitution." 14 Hence the doc 
 trine of original packages. There is no statutory definition of 
 the term original package and the courts have not given any 
 fixed definition to the term, but as each case arose have declared 
 whether the article involved was or was not an original pack 
 age. In May v. New Orleans, 15 it was held, 16 that where 
 goods were imported from foreign countries and were put up 
 for sale in packages and a number of such packages were 
 enclosed in boxes or cases for purposes of transportation, the 
 box or case in which the packages were shipped and not the 
 packages themselves constituted the original package. In this 
 case 4 of the justices dissented from the judgment of the 
 court. 
 
 Mr. Justice Brown in delivering the opinion of the Court in 
 Austin v. Tennessee 17 referred to Brown v. Maryland, the de 
 cision of Chief Justice Marshall, as the source of the doctrine 
 of original packages, intimated that it was doubtful whether 
 the decision would have been the same if the original package 
 in that case had been small instead of large in size, for at that 
 time it was customary to import goods from foreign countries 
 in very large packages. Mr. Justice Brown in this case said : 18 
 
 " It is safe to, assume that it did not occur to the Chief 
 Justice 19 that, by a skillful alteration of the size of the pack 
 ages, the decision might be used to force upon a reluctant people 
 the use of articles denounced as noxious by the legislatures of 
 the several States." In Cook v. Marshall, 20 Mr. Justice Brown 
 referred to Chief Justice Marshall, and summed up the doctrine 
 as follows: 
 
 " The term original package is not defined by any statute, 
 and is simply a convenient form of expression adopted by Chief 
 Justice Marshall in Brown v. Maryland, to indicate that a 
 license tax could not be exacted of an importer of goods from a 
 foreign country who disposes of such goods in the form in 
 
 14 12 Wheaton, 441-2. 
 
 15 178 U. S., 496. 
 
 16 508, 509- 
 
 i 179 U. S., 343. 
 is 179 U. S., 351- 
 
 19 Marshall. 
 
 20 196 U. S., 270. 
 
292 THE POLITICAL AND ECONOMIC 
 
 which they were imported. It is not denied that in the 
 changed and changing conditions of commerce between the 
 States, packages in which shipments may be made from one 
 State to another may be smaller than those * bales, hogsheads, 
 barrels or tierces/ to which the term was originally applied by 
 Chief Justice Marshall, but whatever the form or size employed 
 there must be a recognition of the fact that the transaction is a 
 bona fide one, and that the usual methods of interstate shipment 
 have not been departed from for the purpose of evading the 
 police laws of the States." It is held by the best authorities, 
 11 that an original package is a package delivered by the im 
 porter to the carrier at the initial place of shipment, in the 
 exact condition in which it was shipped." 21 
 
 STATE INSPECTION LAWS 
 
 Chief Justice Marshall in the case of ^Gibbon^jv^ Ogden, 22 
 said : The object of inspection laws is to improve the quality 
 of articles produced by the labor of a country; to fit them for 
 exportation ; or it may be, for domestic use. They act upon the 
 subject before it becomes an article of foreign commerce, or of 
 commerce among the States, and prepare it for that purpose. 
 They form a portion of that immense mass of legislation, 
 which embraces everything within the territory of a State, not 
 surrendered to a general government, all which can be most 
 advantageously exercised by the States themselves. Inspection 
 laws, quarantine laws, health laws of every description, as well 
 as laws for regulating the internal commerce of a State, and 
 those which respect turnpike roads, ferries, etc., are component 
 parts of this mass. 
 
 " No direct general power over these objects is granted to 
 Congress, and consequently, they remain subject to State legis 
 lation. If the legislative power of the Union can reach them, 
 it must be for national purposes ; it must be where the power is 
 expressly given for a special purpose, or is clearly incidental 
 to some power which is expressly given. It is obvious that the 
 Government of the Union, in the exercise of its express powers, 
 that, for example, of regulating commerce with foreign nations 
 and among the States, may use means that may also be em 
 ployed by a State, in the exercise of its acknowledged powers; 
 
 21 27 Court of Claims, 278, 282. 
 
 22 Pp. 12-13. 
 
DOCTRINES OF JOHN MARSHALL 293 
 
 that, for example, of regulating commerce within the State. 
 If Congress license vessels to sail from one port to another in 
 the same State, the act is supposed to be, necessarily, incidental 
 to the power expressly granted to Congress, and implies no 
 claim of a direct power to regulate the purely internal com 
 merce of a State, or to act directly on its system of police. 
 So if a State, in passing laws on subjects acknowledged to be 
 within its control, and with a view to those subjects, shall adopt 
 a measure of the same character with one which Congress may 
 adopt, it does not derive its authority from the particular 
 power which has been granted, but from some other which 
 remains within the State, and may be executed by the same 
 means. All experience shows that the same measures, or 
 measures scarcely distinguishable from each other, may flow 
 from distinct powers ; but this does not prove that the powers 
 themselves are identical. Although the means used in their 
 execution may sometimes approach each other so nearly as to 
 be confounded, there are other situations in which they are 
 sufficiently distinct to establish their individuality." 23 
 
 QUARANTINE LAWS 
 
 Congress recognized as early as 1799, that the States may 
 pass laws which relate to quarantine and the general preserva 
 tion of health. At that time acts were passed which author 
 ized the President to direct the revenue officers to aid in the 
 execution of these laws. 24 In Gibbons v. Ogden, 25 Chief Justice 
 Marshall said, The acts of Congress passed in 1796 and 1799, 
 empowering and directing the officers of the General Govern 
 ment to conform to, and assist in the execution of quarantine 
 and health laws of a State proceed, it is said, upon the idea 
 that these laws are constitutional. It is undoubtedly true, 
 that they do proceed upon that idea; and the constitutionality 
 of such laws has never, so far as we are informed, been denied. 
 They are treated as quarantine and health laws, and are so 
 denominated in the acts of Congress and are considered as 
 flowing from the acknowledged powers of the States, to pro 
 vide for the health of the citizens. 26 
 
 23 9 Wheaton, i. 
 
 24 i U. S. Statutes at Large, 474. 
 
 25 P. 205. 
 
 26 9 Wheaton, 204. 
 
294 THE POLITICAL AND ECONOMIC 
 
 The States can pass quarantine laws for the protection 
 of health and may require the payment of small fees to dis 
 charge the*expense of such examinations as the States think 
 
 is necessary. 27 
 
 NATURALIZATION 
 
 Chief Justice Marshall in speaking of the rights of a natural 
 ized citizen, in Qsborn_v. United States Bank 28 says : 
 
 " He becomes a member of the society, possessing all the 
 rights of a native citizen, and standing, in the view of the 
 Constitution, on the footing of a native. The Constitution 
 does not authorize Congress to enlarge or abridge those rights. 
 The simple power of the National legislature is, to prescribe 
 a uniform rule of naturalization, and the exercise of this 
 power, exhausts it, so far as respects the individual." 29 The 
 above is erroneous. We know that a naturalized citizen does 
 not " possess all the rights of a native citizen " and the Con 
 stitution does not put a naturalized citizen on the " footing 
 of a native." There are certain privileges which belong to a 
 native citizen, prescribed by the Constitution, which can not 
 be conferred on a naturalized citizen and they are among the 
 most esteemed privileges which a native citizen has, among 
 them is the right of eligibility to the presidency. A natural 
 ized citizen cannot be President, or Vice-President. 30 Neither 
 can a naturalized citizen be a member of Congress until he 
 has resided in this country a specified length of time. A 
 little farther on Chief Justice Marshall says in speaking of a 
 naturalized citizen : " He is distinguishable in nothing from 
 a native citizen, except so far as the Constitution makes the 
 distinction. The law makes none." 31 
 
 HABEAS CORPUS 
 The privilege of the writ shall not be suspended. 
 
 There has been much controversy and great difference of 
 opinion among jurists and law writers because the Consti 
 tution fails to say who shall have the power to suspend the 
 
 27ii8 U. S., 455- 
 
 28 9 Wheaton, 739. 
 
 29 P. 827. 
 
 30 Const., art. n, sec. 4. 
 81 9 Wheaton, 828. 
 
- 
 DOCTRINES OF JOHN MARSHALL 295 
 
 writ of habeas corpus. In the early case of Bollman v. 
 Swartout, 32 Chief Justice Marshall said: 
 
 " If at any time the public safety require the suspension 
 of the writ of habeas corpus, it is for the legislature to say 
 so. That question depends on political considerations, of 
 which the legislature is to decide." 
 
 Some say that Marshall s opinion on this subject was obiter/ 
 dictum, because the question was not necessarily or fairly^ 
 before the court. 
 
 BILLS OF ATTAINDER U- 
 
 IrrFleldieiLv, Peck, 33 Chief Justice Marshall said: 
 " A bill of attainder may affect the life of an individual, or | 
 may confiscate his property, or may do both." 
 
 " A bill of attainder is a legislative act which inflicts punish 
 ment without a judicial trial. If the punishment be less than 
 death, the act is termed a bill of pains and penalties. With 
 in the meaning of the Constitution, bills of attainder include 
 bills of pains and penalties. In these cases the legislative 
 body, in addition to its legitimate functions, exercises the 
 powers and office of judge; it assumes, in the language of the 
 text books, judicial magistracy; it pronounces upon the guilt 
 of the party, without any of the forms or safeguards of trial ; 
 it determines the sufficiency of the proofs produced, whether 
 conformable to the rules of evidence or otherwise; and it fixes 
 the degree of punishment in accordance with its own notions 
 of the enormity of the offense. The bills are generally directed 
 against individuals by name, but they may be directed against 
 a whole class." 34 
 
 BILLS OF CREDIT OF STATES 
 
 The evils which produced the prohibitory clause in the Con 
 stitution of the United States, was the practice of the States 
 in making bills of credit, and in some instances appraised 
 property, " a legal tender." 35 This clause of the Constitu 
 tion first came before the Supreme Court of the United States 
 in Craig v. Missouri, the facts in this case were as follows : 
 
 32 4 Cranch, 101. 
 
 33 6 Cranch, 138. 
 
 34 Cummings v. State of Mo., 4 Wallace, 323. 
 
 35 Madison s Writings, Vol. 4, 160. 
 
296 THE POLITICAL AND ECONOMIC 
 
 On the 27th of June, 1821, the legislature of Missouri, author 
 ized the State to issue certificates of indebtedness in the fol 
 lowing form : This certificate shall be receivable at the 
 treasury, or any of the loan offices of the State of Missouri, 
 in the discharge of taxes or debts due the State, for the sum 
 of $- - with interest for the same, at the rate of two per 
 
 centum per annum from this date, the day of 
 
 182 ." The question was, whether these certificates were 
 bills of credit. It was held by the majority of the court that 
 they were, and consequently the State of Missouri could not 
 issue them. In delivering the opinion of the majority Chief 
 Justice Marshall said : 
 
 "What is a bill of credit? What did the Constitution 
 mean to forbid? In its enlarged, and perhaps literal sense, 
 the term, bill of credit, may comprehend any instrument by 
 which a State engages to pay money at a future day, thus in 
 cluding a certificate given for money borrowed. But the 
 language of the Constitution itself, and the mischief to be pre 
 vented, which we know from the history of our country, 
 equally limit the interpretation of the terms. The word 
 emit, is never employed in describing those contracts by 
 which a State binds itself to pay money at a future day, for 
 services actually received, or for money borrowed for present 
 use; nor are instruments executed for such purposes, in com 
 mon language, denominated bills of credit. To emit bills of 
 credit conveys to the mind the idea of issuing paper intended 
 to circulate through the community for its ordinary purposes 
 as money, which paper is redeemable at a future day. This 
 is the sense in which the terms have been always understood. 
 
 " At a very early period of our colonial history, the at 
 tempt to supply the want of the precious metals by a paper 
 medium, was made to a considerable extent; and the bills 
 emitted for this purpose have been frequently denominated 
 bills of credit. During the war of our Revolution, we were 
 driven to this expedient; and necessity compelled us to use it 
 to a most fearful extent. The term has acquired an appro 
 priate meaning ; and bills of credit signify a paper medium, 
 intended to circulate between individuals, and between govern 
 ment and individuals, for the ordinary purposes of society. 
 Such a medium has been always liable to considerable fluctua 
 tion. Its value is continually changing; and these changes, 
 
DOCTRINES OF JOHN MARSHALL 297 
 
 often great and sudden, expose individuals to immense loss, 
 are the sources of ruinous speculations, and destroy all con 
 fidence between man and man. To cut up this mischief by 
 the roots, a mischief which was felt through the United States, 
 and which deeply affected the interest and prosperity of all, 
 the people declared in their Constitution that no State should 
 emit bills of credit. If the prohibition means anything, if the 
 words are not empty sounds, it must comprehend the emission 
 of any paper medium by a State government for the purpose 
 of common circulation." 36 
 
 OBLIGATION OF CONTRACTS 
 
 No State shall pass a law impairing the obligation of con- / 
 tracts. This was the conclusion Chief Justice Marshall came 
 to in the first great case on this subject, the case of Eietcher 
 \^Peclv L 3T which was decided in 1809, twenty years after the 
 esTaBllshment of the Government. The case arose as fol 
 lows: 
 
 Under an act passed by the legislature of Georgia in 1795, 
 a tract of land was sold to the Georgia Co., which was com 
 posed of individuals. Peck conveyed a part of this land to 
 Fletcher, and in his deed Peck covenanted that the State of 
 Georgia had lawful possession of the land when the act was 
 passed and had a good right to sell it. The nature of the ac 
 tion was for a breach of covenant, in that the letters patent 
 were void because the legislative act was passed through cor 
 rupt influences. Then, on the I3th of February, 1796, the 
 legislature passed another act declaring the former act null and 
 void. Thus, the principal question was, whether the legisla 
 ture could repeal the first act and rescind the sale which had 
 occurred under it, the purchasers being innocent of any defect 
 of title. y, 
 
 Chief Justice Marshall delivered the opinion of the court, 
 and held, that where a legislature of a State grants land in 
 fee, a subsequent legislature cannot repeal the grant if an 
 innocent purchaser has acquired title ^without knowledge of 
 the infirmity. The grant made by the State amounted to a 
 contract within the Constitution and the subsequent grant 
 made in pursuance of that contract was an executed contract I 
 
 36 4 Peters, 425. 
 
 3 7 6 Cranch, 87, 135. 
 
298 THE POLITICAL AND ECONOMIC 
 
 and the State could not pass a law impairing its obligation. 
 Also that contracts made by a State were as much within the 
 prohibition of the Constitution against the impairment of 
 the obligation of a contract as contracts made by an individual. 
 Consequently it was held that, bona fide purchasers having 
 acquired a fee under the act of 1795, the State of Georgia 
 was prohibited from enacting a law which would impair the 
 validity of the grant, and that the prohibition applied to both 
 executory and executed contracts. In 1 1 Peters, 420, Justice 
 McLean said : " If it were not for the opinion in Fletcher v. 
 Peck, I would think the prohibition as to contracts applied only 
 to executory contracts." 
 
 Chief Justice Marshall again delivered the opinion of the 
 court in the next case on this subject which was that of New 
 Jersey v. Wilson, decided in 1812. The legislature of New Jer 
 sey passed an act providing that certain lands which the State 
 contemplated purchasing for the use of the Delaware Indians 
 should be exempt from taxation. The lands were accordingly 
 purchased for the Indians and conveyed to them in trust, and 
 thereupon the Indians released their claim to the original 
 lands. The Indians continued to occupy the lands upon which 
 they had moved until 1803, when they were sold to settlers 
 by act of the Legislature, subsequently the Legislature re 
 pealed the act of 1758, which exempted the lands from taxa 
 tion. Chief Justice Marshall held that the original act of the 
 legislature of New Jersey, passed in consideration that the 
 Indians would release their title to the lands, which act de 
 clared that the new lands which should be purchased for the 
 Indians should be exempt from taxation, amounted to a con 
 tract, and that any subsequent act of the legislature which 
 repealed the original act violated that clause of the Constitu 
 tion of the United States which prohibits a State from im 
 pairing the obligation of a contract. 38 
 
 Chief Justice Marshall again delivered the opinion of the 
 Court in the next case which touched this subject, the famous 
 case of S|urges_jy: s _Crpwninshield. 39 Here the court held, 
 that an act of the legislature of New York violated this clause 
 of the Constitution. The facts in the case are as follows: 
 Suit was brought against the maker of two promissory notes. 
 
 88 7 Cranch, 164, 167. 
 
 89 4 Wheaton 122. 
 
DOCTRINES OF JOHN MARSHALL 299 
 
 The defendant pleaded as his defense, that he was discharged 
 from the payment of the notes " under an act for the benefit 
 of insolvent debtors and their creditors passed by the legis 
 lature of New York, in 1811." To this there was a general 
 demurrer filed. Marshall admitted that a State might pass 
 a bankrupt law before Congress exercised its power to do so 
 provided such State law did not impair the obligation of a 
 contract. The notes sued upon had been executed before the 
 law was passed and Marshall in his opinion, expressly limited 
 the decision to the case actually before the court. It was 
 held that the act of the legislature of New York, so far as 
 it attempted to discharge the maker of the notes from paying 
 them, was contrary to the Constitution of the United States, 
 because it impaired the obligation of contracts. 
 
 DEFINITION OF CONTRACT 
 
 In the famous case of ^Dartmouth College v. Woodward, 40 
 decided in 1819, the most elaborate exposition in regard to 
 contract was made. Chief Justice Marshall in his opinion 
 said, that Dartmouth College was a private and not a public 
 corporation, and later in his decision, in regard to contracts 
 said: 
 
 " The term contract, as used in this clause of the Consti 
 tution, must be understood as intended to guard against a 
 power of at least doubtful utility, the abuse of which had 
 been extensively felt; and to restrain the legislature in future 
 from violating the right to property. That anterior to the for 
 mation of the Constitution, a course of legislation had pre 
 vailed in many, if not in all, of the States, which weakened 
 the confidence of man in man, and embarrassed all transactions 
 between individuals by dispensing with a faithful performance 
 of engagements. To correct this mischief, by restraining the 
 power which produced it, the State legislatures were forbidden 
 to pass any law impairing the obligation of contracts. The 
 contracts referred to were contracts respecting property, under 
 which some individual could claim a right to something bene 
 ficial to himself ; and that since the clause in the Constitution 
 must, in construction, receive some limitation, it may be con 
 fined, and ought to be confined, to cases of this description ; 
 
 40 4 Wheaton, 518. 
 
300 THE POLITICAL AND ECONOMIC 
 
 to cases within the mischief it was intended to remedy." 
 Then he proceeded to state that it was not " the purpose of the 
 framers of the Constitution to restrain the States in regulat 
 ing their civil institutions adopted for internal government, 
 and that the instrument they have given us is not to be so 
 construed may be admitted." 
 
 / This decision established the important principle, that where 
 /a contract had been entered into and the rights of the parties 
 , under it had become fixed, a State could not, by legislative 
 1 enactment, pass a law which would impair those rights. 
 
 OBLIGATION OF CONTRACTS DEFINED 
 
 ) Chief Justice Marshall created the first judicial construction 
 /of the term obligation of contracts. This was given in Sturges 
 /j|OGrowninshiej.dj 41 in which he said: 
 
 " It wduTxT seem difficult to substitute words which are more 
 intelligible, or less liable to misconstruction, than those which 
 are to be explained. | A contract is an agreement in which a 
 party undertakes to do, or not to do, a particular thing. The 
 law binds him to perform his undertaking, and this is, of 
 course, the obligation of his contract." 
 
 Thus, here we have Marshall s definition of what the Consti 
 tution means when it speaks of the obligation of a contract. 
 It is the power or force in the law, which binds or compels 
 one to complete his agreement. 
 
 " DELEGATION OF POWERS OF PRESIDENT 
 
 Chief Justice Marshall delivered the opinion in the case of 
 Marbury v. Madison, 42 and in commenting upon the power 
 of the President said: 
 
 *" By the Constitution of the United States, the President is 
 / invested with certain important political powers, in the exer 
 cise of which he is to use his own discretion, and is accountable 
 only to his country in his political character, and to his own 
 conscience. To aid him in the performance of these duties, he 
 is authorized to appoint certain officers, who act by his 
 authority and in conformity with his orders. 
 
 " In such cases their acts are his acts ; and whatever opinion 
 
 41 4 Wheaton, 122. 
 * 2 i Cranch. 
 
DOCTRINES OF JOHN MARSHALL 301 
 
 may be entertained of the manner in which executive discretion 
 may be used, still there exists, and can exist, no power to con 
 trol that discretion. . . . The application of this remark will 
 be perceived by adverting to the act of Congress for establish 
 ing the department of foreign affairs. This officer, as his 
 duties were prescribed by that act, is to conform precisely to the 
 will of the President. He is the mere organ by whom that 
 will is communicated. The acts of such an officer, as an officer, 
 can never be examinable by the courts. 
 
 " But when the legislature proceeds to impose on that officer 
 other duties, when he is directed peremptorily to perform cer 
 tain acts, when the rights of individuals are independent on the 
 performance of those acts : he is so far the officer of the law ; 
 is amenable to the laws for his conduct and cannot at his dis 
 cretion sport away the vested rights of others. 
 
 The conclusion from this reasoning is, that where the heads 
 of departments are the political or confidential agents of the 
 executive, merely to execute the will of the President, or rather 
 to act in cases in which the executive possesses a constitutional 
 or legal discretion, nothing can be more perfectly clear than 
 that their acts are only politically examinable. But where a 
 specific duty is assigned by law, and individual rights depend 
 upon the performance of that duty, it seems equally clear that 
 the individual who considers himself injured has a right to 
 resort to the laws of his country for a remedy." 43 
 
 CHIEF JUSTICE MARSHALL ISSUES SUBPOENA FOR 
 PRESIDENT JEFFERSON IN BURR TRIAL 
 
 How far, if at all, is the President subject to the process of 
 the courts in civil or criminal actions? There has been great 
 diversity of opinion among lawyers and constitutional writers 
 for more than a century on this question. The chief authority 
 in favor of the view that the President is subject to the process 
 of a court is the decision of Chief Justice Marshall, upon appli 
 cation for a subpoena duces tecum directed to President Jeffer 
 son in the Burr trial. Here Marshall issued an order for a 
 subpoena duces tecum requiring Jefferson to appear and produce 
 at the trial certain papers, which it was believed he possessed. 
 Chief Justice Marshall said: 
 43 1 Cranch, 165, 166. 
 
302 THE POLITICAL AND ECONOMIC 
 
 c< That the President of the United States may be subpoenaed 
 and examined as a witness and required to produce any paper 
 in his possession, is not controverted. The President, although 
 subject to the general rules which apply to others, may have 
 sufficient motives for declining to produce a particular paper, 
 and those motives may be such as to restrain the court from 
 enforcing its production. The guard furnished to this high 
 officer to protect him from being harassed by vexatious and 
 unnecessary subpoenas is to be looked for in the conduct of the 
 court after these subpoenas have been issued, not in any cir 
 cumstances which is to precede their being issued. . . . The 
 court can perceive no objection to a subpoena duces tecum to 
 any person whatever provided the case be such as to justify 
 the process." 44 Marshall also said: 
 
 " In no case of this kind would a court be required to proceed 
 against the President as an ordinary individual. The objec 
 tions to such a course are so strong and so obvious that all must 
 acknowledge them." 45 
 
 vx^ 
 
 EXTENT OF JUDICIAL POWERS 
 
 What is meant by extending the judicial power to all cases? 
 What is a case in this connection and when does it arise? 
 Chief Justice Marshall said : 
 
 " It enables the judicial department to receive jurisdiction to 
 the full extent of the Constitution, laws, and treaties of the 
 United States, when any question respecting them shall assume 
 such a form that the judicial power is capable of acting on it. 
 That power is capable of acting only when the subject is sub 
 mitted to it by a party who asserts his rights in the form 
 transcribed by law. It then becomes a case." 40 
 
 WHAT IS A CASE? 
 
 " A case in law or equity consists of the right of one party 
 as well as of the other, and may truly be said to arise under 
 the Constitution or a law of the United States, whenever its 
 correct decision depends on the construction of either." 47 
 
 The words case and cause are synonymous in legal nomen- 
 
 ** " Burr s Trial," Vol. I, 182. 
 * 5 " Burr s Trial," Vol. II. 536. 
 .>6Osborn v. U. S. Bank, 9 Wheaton, 738, 819. 
 47 Cohens v. Virginia, 6 Wheaton, 379. 
 

 DOCTRINES OF JOHN MARSHALL 303 
 
 clature and either one means a proceeding in court, a suit or 
 action. 48 
 
 MARSHALL ON CASES AFFECTING AMBASSADORS 
 
 On this subject Chief Justice Marshall said : 
 
 "If a suit be brought against a foreign minister, the Su 
 preme Court alone has original jurisdiction, and this is shown 
 on the record. But, suppose a suit to be brought which affects 
 the interest of a foreign minister, or by which the person of 
 his secretary, or of his servant, is arrested. The minister 
 does not, by the mere arrest of his secretary, or his servant, 
 become a party to this suit, but the actual defendant pleads 
 to the jurisdiction of the court, and asserts his privilege. If 
 the suit affects a foreign minister, it must be dismissed, not 
 because he is a party to it, but because it affects him. The 
 language of the Constitution in the two cases is different. 
 This court can take cognizance of all cases affecting foreign 
 ministers; and, therefore, jurisdiction does not depend on the 
 party named in the record. But this language changes when 
 the enumeration proceeds to the States. Why this change? 
 The answer is obvious. In the case of foreign ministers, it 
 was intended, for reasons which all comprehend, to give the 
 national courts jurisdiction over all cases by which they were 
 in any manner affected. In the case of States, whose imme 
 diate or remote interests were mixed up with a multitude of 
 cases, and who might be affected in an almost infinite variety of 
 ways, it was intended to give jurisdiction in those cases only 
 to which they were actual parties." 49 
 
 "ORIGINAL JURISDICTION OF THE SUPREME COURT 
 
 Original jurisdiction means that parties who are authorized 
 to do so may bring an action in the Supreme Court without 
 first having brought it in one of the inferior courts. This 
 clause of the Constitution names those who may do this. 
 They are; i, ambassadors, 2, other public ministers, 3, consuls, 
 4, a State. This limits the original jurisdiction of the Su 
 preme Court to a very narrow field. On the subject of orig 
 inal jurisdiction, Chief Justice Marshall said : 
 
 48 Blyen v. U. S., 13 Wallace, 581-595. 
 
 49 9 Wheaton, 854. 
 
304 THE POLITICAL AND ECONOMIC 
 
 " The original jurisdiction of the Supreme Court, in cases 
 where a State is a party, refers to those cases in which, accord 
 ing to the grant of power made in the preceding clause, juris 
 diction might be exercised in consequence of the character of 
 the party, and an original suit might be instituted in any of 
 the Federal courts ; not to those cases in which an original suit 
 might not be instituted in a Federal court. Of the last de 
 scription is every case between a State and its citizens, and per 
 haps every case in which a State is enforcing its penal laws. 
 In such cases, therefore, the Supreme Court cannot take 
 original jurisdiction. In every other case, that is, in every 
 case to which the judicial power extends, and in which original 
 jurisdiction is not expressly given, that judicial power shall 
 be exercised in the appellate, and only in the appellate form." 50 
 
 TREASON LEVYING WAR 
 
 In Bowlman s case, 51 in 1807 Chief Justice Marshall in 
 regard to treason said : " to constitute treason war must be 
 actually levied against the United States. However flagitious 
 may be the crime of conspiring to subvert by force the govern 
 ment of our country, such conspiracy is not treason. The first 
 must be brought into open action by the assemblage of men 
 for a purpose treasonable in itself, or the fact of levying war 
 cannot have been committed. ... It is not the intention of the 
 court to say that no individual can be guilty of this crime who 
 has not appeared in arms against his country. On the con 
 trary, if war be actually levied, that is, if a body of men be 
 actually assembled for the purpose of effecting by force a 
 treasonable purpose, all those who perform any part, however 
 minute, or however remote from the scene of action, and who 
 are actually leagued in the general conspiracy, are to be con 
 sidered as traitors. But. there must be an actual assembling 
 of men for the treasonable purpose, to constitute a levying of 
 war." 
 
 The opinion of Chief Justice Marshall in the Burr Trial 
 covers the whole doctrine of treason. The courts have never 
 gone beyond it in discussing the general subject. Marshall 
 at the trial of Aaron Burr said, in referring to this lan 
 guage, according to the opinion it is not enough to be leagued 
 
 50 6 Wheaton 398, 399. 
 
 51 4 Cranch, 75, 125. 
 
DOCTRINES OF JOHN MARSHALL 305 
 
 in the conspiracy and that war be levied, but it is also neces 
 sary to perform a part; that part is the act of levying war. 
 That part, it is true, may be minute, it may not be the actual 
 appearance in arms, and it may be remote from the scene of 
 action, that is, from the place where the arms are assembled, 
 but it must be a part, and that part must be performed by a 
 person who is leagued in the conspiracy. This part, however 
 minute or remote, constitutes the overt act, of which alone the 
 person who performs it can be convicted. 52 
 
 U POWER OF THE COURTS TO ANNUL LAWS 
 
 Upon this question John Marshall gave his views at the 
 Ylrgjnia Convention, and made his position very clear. He 
 said : 
 
 "If the United States were to make a law not warranted 
 by any of the powers enumerated it would be considered by 
 the judges as an infringement of the Constitution which they 
 are to guard. They would not consider such a law as coming 
 under their jurisdiction. They would declare it void. To 
 what quarter will you look for protection from an infringe 
 ment on the Constitution, if you will not give the power to the 
 Judiciary? There is no other body that can afford such pro 
 tection. 
 
 "AS COUNSEL IN WARE v. HILTON MARSHALL DENIES THE 
 POWER TO ANNUL LAWS 
 
 In the argument of Marshall in the case of JVare v. 
 Hilton 53 we see that he challenged the power of the court to 
 pass upon the validity of legislation. He said : 
 
 " The legislative authority of any country can only be re 
 strained by its own municipal constitution; this is a principle 
 that springs from the very nature of society; and the judicial 
 authority can have no right to question the validity of a law, 
 unless such a jurisdiction is expressly given by the Constitu 
 tion. It is not necessary to enquire, how the judicial authority 
 should act, if the legislature were evidently to violate any of 
 the laws of God; but property is the creature of civil society, 
 and subject, in all respects, to the disposition and control of 
 civil institutions." 
 
 52 " Burr s Trial," Vol. II, 438, 439. 
 
 53 3 Dallas, 211. 
 
306 THE POLITICAL AND ECONOMIC 
 
 AS CHIEF JUSTICE, MARSHALL MAINTAINS THE POWER 
 TO ANNUL LAWS 
 
 As a member of the Virginia Convention, 54 Marshall held 
 that the judiciary could declare certain laws void, as counsel in 
 Ware v. Hilton 55 his argument was at variance with what he 
 said at the Convention, but as Chief Justice he returned to his 
 original position and expounded the same views he held at the 
 Convention. In his opinion in Ma r bury v. Madison 56 Chief 
 Justice Marshall said : 
 
 {" It is emphatically the province and duty of the judicial 
 department to say what the law is. Those who apply the rule 
 to particular cases must of necessity expound and interpret 
 that rule. If two laws conflict with each other, the courts 
 must decide on the operation of each. So, if a law be in 
 opposition to the Constitution; if both the law and the Con 
 stitution applied to a particular case, so that the court must 
 either decide that case conformably to the law, disregarding 
 the Constitution; or conformably to the Constitution, disre 
 garding the law ; the court must determine which of these con 
 flicting rules governs the case. This is of the very essence of 
 judicial duty.T 
 
 In MartiiLv^Jiiinier- 57 Justice Story in his opinion held the 
 same, and that doctrine has been adhered to ever since. Sev 
 eral years later in Cohens v. Virginia, 58 Marshall said : 
 
 " The constitutiorflirid laws of a State, so far as they are 
 repugnant to the Constitution and laws of the United States, 
 are absolutely void. In a government so constituted, is it 
 unreasonable that the judicial power should be competent to 
 give efficacy to the constitutional laws of the legislature? 
 That department can decide on the validity of the constitution 
 or law of a State, if it be repugnant to the Constitution or to a 
 law of the United States. Is it unreasonable that it should also 
 be empowered to decide on the judgment of a State tribunal 
 enforcing such unconstitutional law? Is it so very unreason 
 able as to furnish a justification for controlling the words of 
 the Constitution? We think it is not. We think that in a 
 
 54 Eliot, 3, 553. 
 
 55 3 Dallas, 211. 
 
 56 i Cranch, 147. 
 
 57 i Wheaton, 264, 304, 344. 
 
 58 6 Wheaton, 414, 415. 
 
DOCTRINES OF JOHN MARSHALL 307 
 
 government acknowledgedly supreme, with respects to objects 
 of vital interest to the nation, there is nothing inconsistent 
 with sound reason, nothing incompatible with the nature of 
 government, in making all its departments supreme, so far as 
 respects those objects, and so far as is necessary to their attain 
 ment. The propriety of intrusting the construction of the 
 Constitution, and laws made in pursuance thereof, to the 
 judiciary of the Union, has not, we believe, as yet, been drawn 
 into question." 
 
 v 
 THE GOVERNMENT OF TERRITORIES 
 
 The power to acquire territory is inherent in every sov 
 ereignty, and the acquisition may be made by treaty, purchase, 
 discovery, or conquest. The most usual mode is by treaty. 
 When territory is acquired by the United States, Congress 
 can form it into a district or subdivision which is inferior to a 
 territory, and in time it can be formed into a territory with a 
 legislature elected by the citizens who are qualified to vote and 
 who reside in such territory. The leading officials are ap 
 pointed by the President. Much light is given to this subject 
 by Chief Justice Marshall in the case of the American Insur 
 ance Company v. Canter, 59 he said : 
 
 rl Perhaps the power of governing a territory belonging to 
 the United States, which has not, by becoming a State, ac 
 quired the means of self-government, may result necessarily 
 from the facts that it is not within the jurisdiction of any 
 particular State, and is within the power and jurisdiction of 
 the L T nited States. The right to govern may be the inevitable 
 consequence of the right to acquire territory. Whichever 
 may be the source whence the power is derived, the posses 
 sion of it is unquestioned." 
 
 AMENDMENTS TO THE CONSTITUTION 
 
 Li_Fl^herjv.JPeck, 60 Chief Justice Marshall said : 
 
 " The principled asserted, that one legislature is competent 
 
 to repeal any act which a former legislature was competent to 
 
 pass; and that one legislature cannot abridge the powers of a 
 
 succeeding legislature. The correctness of this principle, so 
 
 69 i Peters, 541. 
 60 6 Cranch, 87. 
 
308 THE POLITICAL AND ECONOMIC 
 
 far as respects general legislation, can never be controverted. 
 But if an act be done under a law a succeeding legislature 
 cannot undo it. The past cannot be recalled by the most ab 
 solute power." 
 
 RELIGIOUS TESTS 
 
 Commenting upon the provision " But no religious Test 
 shall ever be required as a Qualification to any Office or public 
 Trust under the United States;" Chief Justice Marshall, in 
 M Cullo.cJh v. x Maryland, 61 said: 
 
 * The powers vested in Congress may certainly be carried 
 into execution, without prescribing an oath of office. The 
 power to exact this security for the faithful performance is 
 not given, nor is it indispensably necessary. The different 
 departments may be established; taxes may be imposed and 
 collected; armies and navies may be raised and maintained; 
 and money may be borrowed, without requiring an oath of 
 office. It might be argued, with as much plausibility as other 
 incidental powers have been assailed, that the Convention was 
 not unmindful of this subject. The oath which might be 
 exacted that of fidelity to the Constitution is prescribed, 
 and no other can be required. Yet, he would be charged with 
 insanity who should contend, that the Legislature might not 
 superadd to the oath directed by the Constitution such other 
 oath of office as its wisdom might suggest." 
 
 THE ADOPTION OF THE FIRST TEN AMENDMENTS 
 
 In regard to the adoption of the first ten amendments John 
 Marshall gives the following account of the situation, in his 
 "Life of Washington," 62 he says: 
 
 " In the course of this session was also brought forward a 
 proposition, made by Mr. Madison, for recommending to the 
 consideration and adoption of the States, several new articles 
 to be added to the Constitution. 
 
 " Many of those objections to it which had been urged with 
 all the vehemence of conviction, and which in the opinion of 
 some of its advocates, were entitled to serious consideration, 
 were believed by the most intelligent to exist only in imagina- 
 
 61 4 Wheaton, 316, 416. 
 62 Vol. 5, 207-210. 
 
DOCTRINES OF JOHN MARSHALL 309 
 
 tion, and to derive their sole support from an erroneous 
 construction of the instrument. Others were upon points on 
 which the objectors might be gratified without injury to the 
 system. To conciliate the affections of their brethren to the 
 government, was an object greatly desired by its friends. 
 Disposed to respect what they deemed the errors of their op 
 ponents, where that respect could be manifested without a sac 
 rifice of essential principles, they were anxious to annex to the 
 Constitution those explanations and barriers against the pos 
 sible encroachments of rulers on the liberties of the people 
 which had been loudly demanded, however unfounded, in their 
 judgments, might be the fears by which those demands were 
 suggested. These dispositions were perhaps, in some measure, 
 stimulated to exertion by motives of the soundest policy. The 
 formidable minorities in several of the conventions, which in 
 the legislatures of some powerful States had become ma 
 jorities, and the refusal of two States to complete the union, 
 were admonitions not to be disregarded, of the necessity of 
 removing jealousies however misplaced, which operated on 
 so large a portion of society. Among the most zealous 
 friends of the Constitution therefore, were found some of the 
 first and warmest advocates for amendments. 
 
 " To meet the various ideas expressed by the several con 
 ventions ; to select from the mass of alterations which they had 
 proposed those which might be adopted without stripping the 
 government of its necessary powers; to condense them into a 
 form and compass which would be acceptable to persons dis 
 posed to indulge the caprice, and to adopt the language of their 
 particular States; were labours not easily to be accomplished. 
 But the greatest difficulty to be surmounted was, the disposition 
 to make those alterations which would enfeeble and materially 
 injure the future operations of the government. At length, 
 twelve articles in addition to and amendment of the Consti 
 tution were assented to by two-thirds of both Houses of Con 
 gress, and proposed to the legislatures of the several States. 
 Although the necessity of these amendments had been urged 
 by the enemies of the Constitution and denied by its friends, 
 they encountered scarcely any other opposition in the State 
 legislatures, than was given by the leaders of the Anti-Federal 
 party. Admitting the articles to be good in themselves, and 
 to be required by the occasion, it was contended that they 
 
310 THE POLITICAL AND ECONOMIC 
 
 were not sufficient for the security of liberty; and the appre 
 hension was avowed that their adoption would quiet the fears 
 of the people, and check the pursuit of those radical alterations 
 which would afford a safe and adequate protection to their 
 rights. Viewing many of those alterations which were re 
 quired as subversive of the fundamentals of the government, 
 and sincerely desirous of smoothing the way to a reunion of 
 political sentiment by yielding in part to objections which had 
 been pronounced important, the Federalists, almost universally, 
 exerted their utmost powers in support of the particular 
 amendments which had been recommended. They were at 
 length ratified by the legislatures of three-fourths of the States, 
 and probably contributed in some degree, to diminish the 
 jealousies which had been imbibed against the Federal Con- 
 
 An amendment becomes part of the Constitution when it is 
 ratified by the last State necessary to complete the three- 
 fourths of the States required by the Constitution. 
 
 1 THE FIRST TEN AMENDMENTS AS A BILL OF RIGHTS. 
 THE INTENTIONS OF THE FRAMERS 
 
 These amendments are limitations upon the powers of the 
 Federal Government, and were intended as a bill of rights. 
 Twenty years after the first ten amendments were adopted, 
 Chief Justice Marshall, in the case oLFletcher v. Pe^k, 63 .said : 
 " The Constitution of the United States contains what may be 
 deemed a Bill of Rights for the people of each State." 
 Whether or not the amendments were meant to be limitations 
 on the States or on the General government was settled by 
 the United States Supreme Court in 1833, in the case of 
 Barren v. Mayor of Baltimore, 64 when Chief Justice Marshall, 
 after referring to the adoption of the amendments, said : 
 
 " They contained no expression indicating an intention to 
 apply them to the State governments, and this court cannot so 
 apply them." . . . 
 
 " Had the people of the several States, or any of them, 
 required changes in their constitutions ; had they required ad 
 ditional safeguards to liberty from the apprehended encroach- 
 
 63 6 Cranch, 138. 
 
 e* 7 Peters, 143, 247, 249. 
 
DOCTRINES OF JOHN MARSHALL 311 
 
 ments of their particular governments ; the remedy was in 
 their own hands, and would have been applied by themselves. 
 A convention would have been assembled by the discontented 
 States, and the required improvement would have been made 
 by itself. The unwieldy and cumbrous machinery of pro 
 curing a recommendation from two-thirds of Congress, and 
 the assent of three-fourths of their sister States, could never 
 have occurred to any human being as a mode of doing that 
 which might be effected by the State itself. Had the framers 
 of these amendments intended them to be limitations on the 
 powers of the State governments, they would have imitated the 
 framers of the original Constitution, and have expressed that 
 intention. Had Congress engaged in the extraordinary occu 
 pation of improving the Constitutions of the several States by 
 affording the people additional protection from the exercise of 
 power by their own government in matters which concerned 
 themselves alone, they would have declared this purpose in 
 plain and intelligible language." 
 
 " But it is universally understood, it is a part of the history 
 of the day, that the great revolution which established the Con 
 stitution of the United States, was not effected without im 
 mense opposition. Serious fears were extensively entertained 
 that those powers which the patriot statesmen, who then 
 watched over the interests of our country, deemed essential 
 to union, and to the attainment of those invaluable objects for 
 which union was sought, might be exercised in a manner dan 
 gerous to liberty. In almost every convention by which the 
 Constitution was adopted, amendments to guard against the 
 abuse of power were recommended. These amendments de 
 manded security against the apprehended encroachments of 
 the general government not against those of the local gov 
 ernments." 
 
 " These amendments contain no expression indicating an in 
 tention to apply them to the State governments." 
 
 V 
 THE ELEVENTH AMENDMENT, ITS SCOPE 
 
 Chief Justice Marshall, in Cohens v. Virginia, 65 of this 
 amendment said.: 
 
 " That its motive was not to maintain the sovereignty of a 
 
 65 6 Wheaton, 264, 406, 407. 
 
312 THE POLITICAL AND ECONOMIC 
 
 State from the degradation supposed to attend a compulsory 
 appearance before the tribunals of the nation, may be inferred 
 from the terms of the amendment. It does not comprehend 
 controversies between two or more States, or between a State 
 and a foreign State. The jurisdiction of the court still ex 
 tends to these cases; and in these a State may still be sued. 
 We must ascribe the amendment, then, to some other cause 
 than the dignity of a State. There is no difficulty in finding 
 this cause. Those who were inhibited from commencing a 
 suit against a State, or from prosecuting one which might be 
 commenced before the adoption of the amendment, were per 
 sons who might probably be its creditors. There was not 
 much reason to fear that foreign or sister States would be 
 creditors to any considerable amount, and there was reason 
 to retain the jurisdiction of a court in those cases, because it 
 might be essential to the preservation of peace. The amend 
 ment, therefore, extended to suits commenced or prosecuted 
 by individuals, but not to those brought by States. 
 
 " The first impression made on the mind by this amend 
 ment is, that it was intended for those cases, and for those 
 only, in which some demand against a State is made by an 
 individual in the courts of the Union. If we consider the 
 causes to which it is to be traced, we are conducted to the 
 same conclusion. A general interest might well be felt in 
 leaving to a State the full power of consulting its convenience 
 in the adjustment of its debts, or of other claims upon it, but 
 no interest could be felt in so changing the relations between 
 the whole and its parts, as to strip the government of the means 
 of protecting, by the instrumentality of its courts, the Constitu 
 tion and laws from active violation. The amendment means 
 the judicial power is not to extend to any suit in law or 
 equity, commenced or prosecuted against one of the United 
 States, by citizens of another State." 
 
 v A STATE AS A PARTY TO A SUIT. WHEN IT IS A PARTY 
 
 In psbprn_Y,_Bank of the United States 66 Chief Justice 
 Marshall said : 
 
 " It may, we think, be laid down as a rule which admits of 
 no exception, that, in all cases where jurisdiction depends on 
 
 68 9 Wheaton, 738, 57. 
 
DOCTRINES OF JOHN MARSHALL 313 
 
 the party, it is the party named in the record. Consequently, 
 the nth amendment, which restrains the jurisdiction granted 
 by the Constitution over suits against States, is, of necessity, 
 limited to those suits in which a State is the party on the rec 
 ord. The amendment has its full effect, if the Constitution be 
 construed as it would have been construed had the jurisdiction 
 of the court never been extended to suits brought against a 
 State by the citizens of another State or by aliens." 67 
 
 THE IMPLIED POWERS OF CONGRESS 
 
 In the case of McCulloch v. Maryland, 68 Chief Justice 
 Marshall said : 
 
 The sound construction of the Constitution must allow to 
 the national legislature that discretion, with respect to the 
 means by which the powers it confers are to be carried into 
 execution, which will enable that body to perform the high 
 duties assigned to it, in the manner most beneficial to the 
 people. Let the end be legitimate, let it be within the scope of 
 the Constitution, and all means which are appropriate, which 
 are plainly adapted to that end, which are not prohibited, but 
 consist with the letter and spirit of the Constitution, are con 
 stitutional." 
 
 ^ MARBURY v. MADISON 
 
 This was the first great decision of Chief Justice Marshall. 
 It is one of the base-stones of his reputation. Before this, he 
 delivered five opinions, one involving a claim to salvage turn 
 ing upon an alleged recapture, in which he undertook to review 
 elaborately our relations towards France in 1799, and declared 
 that they were those of a partial war (see Talbot v. Seeman, 
 i Cr. i (1801)) ; one relating to the proper method of appro 
 priating waste lands in Kentucky (Wilson v. Mason, I Cranch 
 45 (1801)) ; one in which he upheld the treaty obligations of 
 the nation, even though such a course might involve an inter 
 ference with private rights vested under a decree of condem 
 nation in an inferior court (U. S. v. Schooner Peggy, i Cranch 
 
 67 The decisions are not harmonious and the earlier judgments or opin 
 ions have been modified or overruled in regard to the question, " When 
 is a State a party to a suit?" "Watson on the Constitution," Vol. II, p. 
 
 68 4 Wheaton, 316, 421. 
 
314 THE POLITICAL AND ECONOMIC 
 
 103) ; and two involving mere matters of practice, (Resler v. 
 Shehee, i Cranch, 1 1 1 ) the latter turning upon considerations 
 of the law relating to executions (Turner v. Fendall, i Cranch 
 117). 
 
 The next case was that of Marbury v. Madison ( i Cranch, 
 137. 1803). The facts of this case were as follows: In 
 the December term, 1801, Chas! Lee, late Attorney General of 
 the United States, moved for a rule to show cause why a 
 mandamus should not issue addressed to Madison, then Secre 
 tary of State, commanding him to deliver a commission to 
 Marbury, whom President Adams, before the expiration of his 
 term, 69 had nominated as a Justice of the Peace for the District 
 of Columbia. The nomination had been confirmed by the 
 Senate. A commission had been filled out, and signed by the 
 President of the United States, and also sealed with the seal 
 of the United States, but it had not been delivered when 
 Thomas Jefferson took the reins of government, as President 
 of the United States. Jefferson countermanded the issue of 
 the commission on the ground that the appointment was incom 
 plete and void on account of the fact, that the commission had 
 remained undelivered. The application made to the Supreme 
 Court was for the exercise of its original jurisdiction under 
 the terms of the Judiciary Act, and the main question undoubt- 
 
 69 " President Adams at length decided to have a cabinet he could con 
 trol. He asked Pickering to resign. Timothy said he was poor and 
 needed the money, therefore he could not resign. Adams doubtless re 
 membered son-in-law Smith, whom Pickering had opposed on the score 
 of his poverty, and he dismissed Timothy summarily. McHenry, Secre 
 tary of War, he also forced to resign. To fill these vacancies, John Mar 
 shall was appointed Sec. of State and Samuel Dexter Sec, of War. . . . 
 Mr. Jefferson said that the Federalists, routed at the polls, retreated 
 into the judiciary. This is true. Mr. Adams and his party knew where 
 their haven, their fortress was, and they ran into it. Posts were hur 
 riedly filled with stalwart partizans. Pres. Adams kept on filling up the 
 offices with Federalists till nine o clock of the last night of his term. The 
 whole administration was made a deep, solid, political color. No Repub 
 lican spot, stripe, or trimming appeared anywhere to relieve the dull mo 
 notony of Federalism. 
 
 " John Marshall, already Sec. of State, was given an additional office. 
 He was appointed Chief Justice, a place from which he was to fulminate 
 rank Federalism with authoritative yoke for more than a generation. 
 
 " The time being short and the object worthy, Mr. Adams continued to 
 sign commissions, and John Marshall, by candle-light, continued to coun 
 tersign. At midnight, so the story goes, Lev! Lincoln stepped into the 
 room, drew Jefferson s watch upon the industrious Marshall, and made 
 him stop." (Watson s " Life of Jefferson," p. 379.) 
 
DOCTRINES OF JOHN MARSHALL 315 
 
 edly was whether such a writ could issue from the Supreme 
 Court under the gift of a jurisdiction by Congress in direct 
 violation of the terms of the Constitution in distributing orig 
 inal and appellate authority. That delivery was not essential ^ 
 to the validity of letters patent, and that the right of the plain- I 
 tiff to his office was complete, and hence he was entitled to a ; 
 remedy, was held by the court. Congress could not give r" 
 original jurisdiction to the Supreme Court, in cases not sanc 
 tioned by the Constitution, so the application must be refused. 
 
 The fact that it was the first authoritative announcement by 
 the Supreme Court that it had the right as well as the power to 
 declare null and void an Act of Congress in violation of the 
 Constitution, gave this case wide attention and great im 
 portance. This case has established principles which have 
 never been controverted. The ministerial and executive 
 officers of the government all over the country, are by this case 
 subjected to the control of the courts in regard to the execution 
 of a major part of their duties. 
 
 The letters of Jefferson show, and the general attitude of 
 both men, Jefferson and Marshall, makes it plain that Marbury 
 and Madison, were the John Doe and Richard Roe of the eject 
 ment; the real issue was between John Marshall and Thomas 
 Jefferson. The opinion of Marshall was regarded by Jefferson 
 as a defiance. He looked at nearly all of Marshall s opinions 
 as being hostile acts. 70 
 
 In this case the decision of the Court turned on the point 
 thai Supreme Court had no power tojssue a writ of rqandatnus 
 
 directing the delivery of the commission. As the Constitution 
 gave to the Court no original jurisdiction in such a case, and 
 the Judiciary Act, in so far as it attempted to increase the 
 jurisdiction, conflicted with the Constitution, and therefore was 
 void. Thus we see that the actual decision was against Mar- 
 bury. The opinion as a whole infuriated the Jeffersonians to 
 a great degree, and as one writer on the subject says : " It 
 cannot be denied that such an opinion was highly calculated to 
 inflame the Jeffersonians, who contended that Congress, not 
 the Supreme Court of Federalists, had the right to decide the 
 constitutionality of its laws." 71 The decision as a whole 
 
 70 Letter of Thomas Jefferson to Thomas Ritchie, December 25, 1820. 
 "Jefferson s Works," Vol. VII, p. 192. 
 71 " The Constitutional Decisions of Marshall," Vol. I, p. 5. 
 
316 THE POLITICAL AND ECONOMIC 
 
 enraged Jefferson and the Republicans and indirectly caused 
 the impeachment of Pickering and a violent attack on the 
 Judiciary which finally culminated in the unsuccessful attempt 
 to impeach Justice Chase. This great decision does not con 
 tain a single hint of this intense partisan quarrel that was at 
 the time underlying the case. In the opening words of the 
 case, Chief Justice Marshall said: " The peculiar delicacy of 
 this case, the novelty of some of its circumstances, and the real 
 difficulty attending the points which occur in it, require a com 
 plete exposition of the principles on which the opinion to be 
 given by the Court is founded." And later in the decision he 
 says : " The intimate political relation subsisting between the 
 President of the United States and the heads of Departments 
 necessarily renders any legal investigation of the acts of one 
 of those high officers peculiarly irksome, as well as delicate; 
 and excites some hesitation with respect to the propriety of 
 entering into such investigation. Impressions are often re 
 ceived without much reflection or examinations, and it is not 
 wonderful, that in such a case as this the assertion by an indi 
 vidual, of his legal claims in a court of justice, to which claims 
 it is the duty of the court to attend, should at first view be con 
 sidered by some as an attempt to intrude into the cabinet, and 
 to intermeddle with the prerogatives of the executive." Thus 
 we see from the temper of the opinion that there is much to be 
 read between the lines. The Federalists went to pieces, and 
 Jefferson, his most hated and bitterest political enemy, came 
 into power. 
 
 Chief Justice Marshall delivered the opinion of the Court on 
 ; the 24th of February, 1803. 
 
 OPINION OF THE COURT. 
 
 At the last term, on the affidavits then read and filed with the 
 clerk, a rule was granted in this case, requiring the secretary of 
 state to show cause why a mandamus should not issue, direct 
 ing him to deliver to William Marbury his commission as a 
 justice of the peace for the county of Washington, in the dis 
 trict of Columbia. 
 
 No cause has been shown, and the present motion is for a 
 mandamus. The peculiar delicacy of this case, the novelty of 
 some of its circumstances, and the real difficulty attending 
 
DOCTRINES OF JOHN MARSHALL 317 
 
 the points which occur in it, require a complete exposition of 
 the principles on which the opinion to be given by the court 
 is founded. 
 
 These principles have been, on the side of the applicant, very 
 ably argued at the bar. In rendering the opinion of the court 
 there will be some departure in form, though not in substance, 
 from the points stated in that argument. 
 
 In the order in which the court has viewed this subject, the 
 following questions have been considered and decided : 
 
 ist. Has the applicant a right to the commission he de 
 mands ? 
 
 2d. If he has a right, and that right has been violated, do 
 the laws of his country afford him a remedy? 
 
 3d. If they do afford him a remedy, is it a mandamus 
 issuing from this court? 
 
 The first object of inquiry is, 
 
 ist. Has the applicant a right to the commission he de 
 mands ? 
 
 His right originates in an act of Congress, passed in Februn 
 ary, 1801, concerning the district of Columbia. 
 
 After dividing the district into two counties, the eleventh 
 section of this law enacts, " that there shall be appointed, in .. 
 and for each of the said counties, such number of discreet per 
 sons to be justices of the peace as the president of the United 
 States shall, from time to time, think expedient, to continue in 
 office for five years. 
 
 It appears from the affidavits, that in compliance with this 
 law, a commission for William Marbury, as a justice -of the 
 peace for the county of Washington, was signed by John 
 Adams, then president of the United States ; after which the 
 seal of the United States was affixed to it ; but the commission 
 has never reached the person for whom it was made out. 
 
 In order to determine whether he was entitled to this com 
 mission, it becomes necessary to inquire whether he has been 
 appointed to the office. For if he has been appointed, the law 
 continues him in office for five years, and he is entitled to the 
 possession of those evidences of office, which, being completed, 
 became his property. 
 
 The second section of the second article of the constitution 
 declares that " the president shall nominate, and, by and with 
 the advice and consent of the senate, shall appoint ambassadors, 
 
3 i8 THE POLITICAL AND ECONOMIC 
 
 other public ministers, and consuls, and all other officers of the 
 United States whose appointments are not otherwise provided 
 for." 
 
 The third section declares that " he shall commission all the 
 officers of the United States." 
 
 An act of congress directs the secretary of state to keep the 
 seal of the United States, " to make out and record, and affix 
 the said seal to, all civil commissions to officers of the United 
 States, to be appointed by the president, by and with the con 
 sent of the Senate, or by the president alone ; provided, that the 
 said seal shall not be affixed to any commission before the same 
 shall have been signed by the president of the United States." 
 
 These are the clauses of the constitution and laws of the 
 United States which affect this part of the case. They seem to 
 contemplate three distinct operations : 
 
 ist. The nomination. This is the sole act of the president, 
 and is completely voluntary. 
 
 2d. The appointment. This is also the act of the president, 
 and is also a voluntary act, though it can only be performed 
 by and with the advice and consent of the senate. 
 
 3d. The commission. To grant a commission to a person 
 appointed might, perhaps, be deemed a duty enjoined by the 
 constitution. " He shall," says that instrument, " commission 
 all the officers of the United States." 
 
 The acts of appointing to office, and commissioning the 
 person appointed, can scarcely be considered as one and the 
 same ; since the power to perform them is given in two separate 
 and distinct sections of the constitution. The distinction be 
 tween the appointment and the commission will be rendered 
 more apparent by adverting to that provision, in the second 
 section of the second article of the constitution, which author 
 izes congress " to vest by law the appointment of such in 
 ferior officers as they think proper in the president alone, in 
 the courts of law, or in the heads of departments ; " thus con 
 templating cases where the law may direct the president to com 
 mission an officer appointed by the courts, or by the heads of 
 departments. In such a case, to issue a commission would be 
 apparently a duty distinct from the appointment, the perform 
 ance of which, perhaps, could not legally be refused. 
 
 Although that clause of the constitution, which requires the 
 president to commission all the officers of the United States, 
 
DOCTRINES OF JOHN MARSHALL 319 
 
 may never have been applied to officers appointed otherwise 
 than by himself, yet it would be difficult to deny the legislative 
 power to apply it to such cases. Of consequence, the constitu 
 tional distinction between the appointment to an office and the 
 commission of an officer who has been appointed remains the 
 same as if in practice, the president had commissioned officers 
 appointed by an authority other than his own. 
 
 It follows, too, from the existence of this distinction, that, 
 if an appointment was to be evidenced by any public act other 
 than the commission, the performance of such public act 
 would create the officer ; and, if he was not removable at the 
 will of the president, would either give him a right to his 
 commission, or enable him to perform the duties without it. 
 
 These observations are premised solely for the purpose of 
 rendering more intelligible those which apply more directly 
 to the particular case under consideration. 
 
 This is an appointment made by the president, by and with 
 the advice and consent of the senate, and is evidenced by no 
 act but the commission itself. In such a case, therefore, the 
 commission and the appointment seem inseparable; it being 
 almost impossible to show an appointment otherwise than by 
 proving the existence of a commission. Still, the commis 
 sion is not necessarily the appointment, though conclusive 
 evidence of it. 
 
 But at what stage does it amount to this conclusive evi 
 dence ? 
 
 The answer to this question seems an obvious one. The 
 appointment, being the sole act of the president, must be com 
 pletely evidenced when it is shown that he has done every 
 thing to be performed by him. 
 
 Should the commission, instead of being evidence of an 
 appointment, even be considered as constituting the appoint 
 ment itself, still, it would be made when the last act to 
 be clone by the president was performed, or, at furthest, when 
 the commission was complete. 
 
 The last act to be done by the president is the signature of 
 the commission. He has then acted on the advice and consent 
 of the senate to his own nomination. The time for delibera 
 tion has then passed. He has decided. His judgment, on 
 the advice and consent of the senate concurring with his nom 
 ination, has been made, and the officer is appointed. This ap- 
 
320 THE POLITICAL AND ECONOMIC 
 
 pointment is evidenced by an open, unequivocal act ; and being 
 the last act required from the person making it, necessarily 
 excludes the idea of its being, so far as respects the appoint 
 ment, an inchoate and incomplete transaction. 
 
 Some point of time must be taken when the power of the 
 executive over an officer not removable at his will must cease. 
 That point of time must be when the constitutional power of 
 appointment has been exercised. And this power has been ex 
 ercised when the last act required from the person possessing 
 the power has been performed. This last act is the signature 
 of the commission. This idea seems to have prevailed with 
 the legislature when the act passed converting the department 
 of foreign affairs into the department of state. By that act 
 it is enacted, that the secretary of state shall keep the seal 
 of the United States, " and shall make out and record, and 
 shall affix the said seal to, all civil commissions to officers 
 of the United States to be appointed by the president; " " pro 
 vided, that the said seal shall not be affixed to any commission 
 before the same shall have been signed by the president of 
 the United States ; nor to any other instrument or act without 
 the special warrant of the president therefor." 
 
 The signature is a warrant for affixing the great seal to 
 the commission ; and the great seal is only to be affixed to an 
 instrument which is complete. It attests, by an act supposed 
 to be of public notoriety, the verity of the presidential signa 
 ture. 
 
 It is never to be affixed till the commission is signed, be 
 cause the signature, which gives force and effect to the com 
 mission, is conclusive evidence that the appointment is made. 
 
 The commission being signed, the subsequent duty of the 
 secretary of state is prescribed by law, and not to be guided 
 by the will of the president. He is to affix the seal of the 
 United States to the commission, and is to record it. 
 
 This is not a proceeding which may be varied, if the judg 
 ment of the executive shall suggest one more eligible ; but is 
 a precise course accurately marked out by law, and is to be 
 strictly pursued. It is the duty of the secretary of state to 
 conform to the law; and in this he is an officer of the United 
 States, bound to obey the laws. He acts, in this respect, 
 as has been very properly stated at the bar, under the authority 
 of law, and not by the instructions of the president. It is a 
 
DOCTRINES OF JOHN MARSHALL 321 
 
 ministerial act which the law enjoins on a particular officer 
 for a particular purpose. 
 
 If it should be supposed that the solemnity of affixing the 
 seal is necessary not only to the validity of the commission, 
 but even to the completion of an appointment, still, when the 
 seal is affixed the appointment is made and the commission 
 is valid. No other solemnity is required by law ; no other act 
 is to be performed on the part of the government. All that 
 the executive can do to invest the person with his office is 
 done ; and unless the appointment be then made, the executive 
 cannot make one without the cooperation of others. 
 
 After searching anxiously for the principles on which a 
 contrary opinion may be supported, none have been found 
 which appear of sufficient force to maintain the opposite doc 
 trine. 
 
 Such as the imagination of the court could suggest have 
 been very deliberately examined, and after allowing them all 
 the weight which it appears possible to give them, they do not 
 shake the opinion which has been formed. 
 
 In considering this question, it has been conjectured that 
 the commission may have been assimilated to a deed, to the 
 validity of which delivery is essential. 
 
 This idea is founded on the supposition that the commission 
 is not merely evidence o f an appointment, but is itself the 
 actual appointment ; a supposition by no means unquestionable. 
 But for the purpose of examining this objection fairly, let it be 
 conceded that the principle claimed for its support is es 
 tablished. 
 
 The appointment being, under the constitution, to be made 
 by the president personally, the delivery of the deed of ap 
 pointment, if necessary to its completion, must be made by 
 the president also. It is not necessary that the delivery should 
 be made personally to the grantee of the office; it never is 
 so made. The law would seem to contemplate that it should 
 be made to the secretary of state, since it directs the secre 
 tary to affix the seal to the commission after it shall have 
 been signed by the president. If then, the act of delivery 
 be necessary to give validity to the commission, it has been 
 delivered when executed and given to the secretary for the 
 purpose of being sealed, recorded, and transmitted to the 
 party. 
 
322 THE POLITICAL AND ECONOMIC 
 
 But in all cases of letters patent certain solemnities are 
 required by law, which solemnities are the evidences of the 
 validity of the instrument. A formal delivery to the person 
 is not among them. In cases of commissions, the sign manual 
 of the president, and the seal of the United States, are those 
 solemnities. This objection, therefore, does not touch the 
 case. 
 
 It has also occurred as possible, and barely possible, that 
 the transmission of the commission, and the acceptance thereof, 
 might be deemed necessary to complete the right of the plaintiff. 
 
 The transmission of the commission is a practice directed 
 by convenience, but not by law. It cannot, therefore, be neces 
 sary to constitute the appointment, which must precede it, 
 and which is the mere act of the president. If the executive 
 required that every person appointed to an office should him 
 self take means to procure his commission, the appointment 
 would not be the less valid on that account. The appointment 
 is the sole act of the president; the transmission of the com 
 mission is the sole act of the officer to whom that duty is as 
 signed, and may be accelerated or retarded by circumstances 
 which can have no influence on the appointment. A com 
 mission is transmitted to a person already appointed; not to 
 a person to be appointed or not, as the letter enclosing the 
 commission should happen to get into the post-office and 
 reach him in safety, or to miscarry. 
 
 It may have some tendency to elucidate this point, to inquire 
 whether the possession of the original commission be indis 
 pensably necessary to authorize a person, appointed to any 
 office, to perform the duties of that office. If it was neces 
 sary, then a loss of commission would lose the office. Not 
 only negligence, but accident or fraud, fire or theft, might de 
 prive an individual of his office. In such a case, I presume, it 
 could not be doubted but that a copy from the record of the 
 office of the secretary of state would be, to every intent and 
 purpose, equal to the original. The act of congress has ex 
 pressly made it so. To give that copy validity, it would not 
 be necessary to prove that the original had been transmitted 
 and afterwards lost. The copy would be complete evidence 
 that the original had existed, and that the appointment had 
 been made, but not that the original had been transmitted. 
 If, indeed, it should appear that the original had been mislaid 
 
DOCTRINES OF JOHN MARSHALL 323 
 
 in the office of state, that circumstance would not affect the 
 operation of the copy. When all the requisites have been per 
 formed which authorize a recording officer to record any in 
 strument whatever, and the order for that purpose has been 
 given, the instrument is, in law, considered as recorded, al 
 though the manual labor of inserting it in a book kept for 
 that purpose may not have been performed. 
 
 In the case of commissions, the law orders the secretary 
 of state to record them. When, therefore, they are signed and 
 sealed, the order for their being recorded is given ; and whether 
 inserted in the book or not, they are, in law, recorded. 
 
 A copy of this record is declared equal to the original, and 
 the fees to be paid by a person requiring a copy are ascer 
 tained by law. Can a keeper of a public record erase therefrom 
 a commission which has been recorded? Or can he refuse a 
 copy thereof to a person demanding it on the terms prescribed 
 by law ? 
 
 Such a copy would, equally with the original, authorize the 
 justice of the peace to proceed in the performance of his duty, 
 because it would, equally with the original, attest his appoint 
 ment. 
 
 If the transmission of a commission be not considered as 
 necessary to give validity to an appointment, still less is its 
 acceptance. The appointment is the sole act of the president ; 
 the acceptance is the sole act of the officer, and is, in plain 
 common sense, posterior to the appointment. As he may re 
 sign, so may he refuse to accept; but neither the one nor 
 the other is capable of rendering the appointment a nonen 
 tity. 
 
 That this is the understanding of the government is apparent 
 from the whole tenor of its conduct. 
 
 A commission bears date, and the salary of the officer com 
 mences, from his appointment; not from the transmission or 
 acceptance of his commission. When a person appointed to 
 any office refuses to accept that office, the successor is nomi 
 nated in the place of the person who has declined to accept, and 
 not in place of the person who had been previously in office, 
 and had created the original. 
 
 It is, therefore, decidedly the opinion of the court, that, 
 when a commission has been signed by the president, the aj 
 pointment is made ; and that the commission is complete when 
 
324 THE POLITICAL AND ECONOMIC 
 
 the seal of the United States has been affixed to it by the 
 secretary of state. 
 
 When an officer is removable at the will of the executive, 
 the circumstance which completes his appointment is of no 
 concern ; because the act is at any time revocable ; and the com 
 mission may be arrested, if still in the office. But when the 
 officer is not removable at the will of the executive, the ap 
 pointment is not revocable, and cannot be annulled. It has 
 conferred legal rights which can not be resumed. 
 
 The discretion of the executive is to be exercised until 
 the appointment has been made. But having once made the 
 appointment, his power over the office is terminated in all 
 cases where by law the officer is not removable by him. The 
 right to the office is then in the person appointed, and he 
 has the absolute, unconditional power of accepting or re 
 jecting it. 
 
 / Mr. Marbury, then, since his commission was signed by the 
 \l president, and sealed by the secretary of state, was appointed ; 
 \ and as the law creating the office gave the officer a right to 
 | mold for five years, independent of the executive, the appoint 
 ment was not revocable, but vested in the officer legal rights, 
 which are protected by the laws of his country. 
 
 To withhold his commission, therefore, is an act deemed by 
 the court not warranted by law, but violative of a vested legal 
 right. 
 
 This brings us to the second inquiry ; which is, 
 
 2d. If he has a right, and that right has been violated, do 
 the laws of his country afford him a remedy? 
 
 The very essence of civil liberty certainly consists in the 
 right of every individual to claim the protection of the laws 
 whenever he receives an injury. One of the first duties of 
 government is to afford that protection. In Great Britain 
 the King himself is sued in the respectful form of a petition, 
 and he never fails to comply with the judgment of his court. 
 
 In the third volume of his Commentaries, page 23, Black- 
 stone states two cases in which a remedy is afforded by mere 
 operation of law. 
 
 " In all other cases/ he says, " it is a general and indisput 
 able rule, that, where there is a legal right, there is also a 
 legal remedy by suit, or action at law, whenever that right is 
 invaded." 
 
DOCTRINES OF JOHN MARSHALL 325 
 
 And afterwards, page 109 of the same volume, he says, " I 
 am next to consider such injuries as are cognizable by the 
 courts of the common law. And herein I shall for the present 
 only remark that all possible injuries whatsoever, that did not 
 fall within the exclusive cognizance of either the ecclesias 
 tical, military, or maritime tribunals, are, for that very reason, 
 within the cognizance of the common-law courts of justice; 
 for it is a settled and invariable principle in the laws of Eng 
 land that every right when withheld must have a remedy, 
 and every injury its proper redress." 
 
 The government of the United States has been emphatically 
 termed a government of laws, and not of men. It will cer 
 tainly cease to deserve this high appellation, if the laws furnish 
 no remedy for the violation of a vested legal right. 
 
 If this obloquy is to be cast on the jurisprudence of our 
 country, it must arise from the peculiar character of the case. 
 
 It behooves us, then, to inquire whether there be in its 
 composition any ingredient which shall exempt it from legal 
 investigation, or exclude the injured party from legal re 
 dress. In pursuing this inquiry, the first question which pre 
 sents itself is, whether this can be arranged with that class 
 of cases which come under the description of damnum absque 
 injuria, a loss without an injury. 
 
 This description of cases never has been considered, and it 
 is believed never can be considered, as comprehending offices 
 of trust, of honor, or of profit. The office of justice of peace 
 in the District of Columbia is such an office; it is therefore 
 worthy of the attention and guardianship of the laws. It 
 has received that attention and guardianship. It has been 
 created by special act of congress, and has been secured, so 
 far as the laws can give security, to the person appointed to 
 fill it, for five years. It is not, then, on account of the worth- 
 lessness of the thing pursued, that the injured party can be al 
 leged to be without remedy. 
 
 Is it in the nature of the transaction? Is the act of de 
 livering or withholding a commission to be considered as a 
 mere political act, belonging to the executive department alone, 
 for the performance of which entire confidence is placed by our 
 constitution in the supreme executive ; and for any misconduct 
 respecting which, the injured individual has no remedy? 
 
 That there may be such cases is not to be questioned; but 
 
326 THE POLITICAL AND ECONOMIC 
 
 that every act of duty, to be performed in any of the great 
 departments of government, constitute such a case,, is not to 
 be admitted. 
 
 By the act concerning invalids, passed in June, 1794, vol. 3, 
 p. 112, the Secretary of War is ordered to place on the pen 
 sion list all persons whose names are contained in a report 
 previously made by him to congress. If he should refuse to 
 do so, would the wounded veteran be without remedy? Is 
 it to be contended that where the law in precise term, directs 
 the performance of an act, in which an individual is interested, 
 the law is incapable of securing obedience to its mandate? Is 
 it on account of the character of the person against whom 
 the complaint is made? Is it to be contended that the heads 
 of departments are not amenable to the laws of their country? 
 
 Whatever the practice on particular occasions may be, the 
 theory of this principle will certainly never be maintained. 
 No act of the legislature confers so extraordinary a privilege, 
 nor can it derive -countenance from the doctrines of the com 
 mon law. After stating that personal injury from the king to 
 a subject is presumed to be impossible, Blackstone, vol. 3, p. 
 255, says, " but injuries to the rights of property can scarcely 
 be committed by the crown without the intervention of its 
 officers; for whom the law, in matters of right, entertains 
 no respect or delicacy: but furnishes various methods of de 
 tecting the errors and misconduct of those agents, by whom the 
 king has been deceived and induced to do a temporary in 
 justice." 
 
 By the act passed in 1796, authorizing the sale of the lands 
 above the mouth of Kentucky river (vol. 3, p. 299), the 
 purchaser, on paying his purchase money, becomes completely 
 entitled to the property purchased; and on producing to the 
 Secretary of State the receipt of the treasurer upon a certi 
 ficate required by the law, the President of the United States 
 is authorized to grant him a patent. It is further enacted that 
 all patents shall be countersigned by the Secretary of State, 
 and recorded in his office. If the Secretary of State should 
 choose to withhold this patent ; or, the patent being lost, should 
 refuse a copy of it ; can it be imagined that the law furnishes to 
 the injured person no remedy? 
 
 It is not believed that any person whatever would attempt 
 to maintain such a proposition. 
 
DOCTRINES OF JOHN MARSHALL 327 
 
 It follows, then, that the question, whether the legality of 
 an act of the head of a department be examinable in a court 
 of justice or not, must always depend on the nature of that 
 act. 
 
 If some acts be examinable, and others not, there must be 
 some rule of law to guide the court in the exercise of its 
 jurisdiction. 
 
 In some instances there may be difficulty in applying the 
 rule to particular cases ; but there cannot, it is believed, be much 
 difficulty in laying down the rule. 
 
 By the constitution of the United States, the President is 
 invested with certain important political powers, in the exer 
 cise of which he is to use his own discretion, and is account 
 able only to his country in his political character and to his 
 own conscience. To aid him in the performance of these 
 duties, he is authorized to appoint certain officers, who act 
 by his authority, and in conformity with his orders. 
 
 In such cases, their acts are his acts; and whatever opinion 
 may be entertained of the manner in which executive dis 
 cretion may be used, still there exists, and can exist, no power 
 to control that discretion. The subjects are political. They 
 respect the nation, not individual rights, and being intrusted 
 to the executive, the decision of the executive is conclusive. 
 The application of this remark will be perceived by adverting 
 to the act of congress for establishing the department of for 
 eign affairs. This officer, as his duties were prescribed by that 
 act, is to conform precisely to the will of the President. He is 
 the mere organ by whom that will is communicated. The 
 acts of such an officer, as an officer, can never be examinable 
 by the courts. 
 
 But when the legislature proceeds to impose on that officer 
 other duties ; when he is directed peremptorily to perform cer 
 tain acts ; when the rights of individuals are dependent on the 
 performance of those acts; he is so far the officer of the law; 
 is amenable to the laws for his conduct; and cannot at his 
 discretion sport away the vested rights of others. 
 
 The conclusion from this reasoning is, that where the heads 
 of departments are the political or confidential agents of the 
 executive, merely to execute the will of the President, or 
 rather to act in cases in which the executive possesses a con 
 stitutional or legal discretion, nothing can be more perfectly 
 
328 THE POLITICAL AND ECONOMIC 
 
 clear then that their acts are only politically examinable. But 
 where a specific duty is assigned by law, and individual rights 
 depend upon the performance of that duty, it seems equally 
 clear that the individual who considers himself injured, 
 has a right to resort to the laws of his country for a rem 
 edy. 
 
 If this be the rule, let us inquire how it applies to the case 
 under the consideration of the court. 
 
 The power of nominating to the senate, and the power of 
 appointing the person nominated, are political powers, to be 
 exercised by the President according to his own discretion. 
 When he has made an appointment, he has exercised his whole 
 power, and his discretion has been completely applied to the 
 case. If, by law, the officer be removable at the will of the 
 President, then a new appointment may be immediately made, 
 and the rights of the officer are terminated. But as a fact 
 which has existed cannot be made never to have existed, the 
 appointment cannot be annihilated; and consequently, if the 
 officer is by law not removable at the will of the President, 
 the rights he has acquired are protected by the law, and are 
 not resumable by the President. They can not be extinguished 
 by executive authority, and he has the privilege of asserting 
 them in like manner as if they had been derived from any 
 other source. 
 
 The question whether a right has vested or not, is, in its 
 nature, judicial, and must be tried by the judicial authority. 
 If, for example, Mr. Marbury had taken the oaths of a magis 
 trate, and proceeded to act as one, in consequence of 
 which a suit had been instituted against him, in which his 
 defense had depended on his being a magistrate, the validity 
 of his appointment must have been determined by judicial 
 authority. 
 
 So, if he conceives that, by virtue of his appointment, he 
 has a legal right either to the commission which has been made 
 out for him, or to a copy of that commission, it is equally a 
 question examinable in a court, and the decision of the court 
 upon it must depend on the opinion entertained of his ap 
 pointment. 
 
 That question has been discussed, and the opinion is, that the 
 latest point of time which can be taken as that at which the 
 appointment was complete, and evidenced, was when, after the 
 
DOCTRINES OF JOHN MARSHALL 329 
 
 signature of the President, the seal of the United States was 
 affixed to the commission. 
 
 It is, then, the opinion of the Court. 
 
 ist. That by signing the commission of Mr. Marbury, the 
 President of the United States appointed him a justice of the 
 peace for the county of Washington, in the District of Colum 
 bia; and that the seal of the United States, affixed thereto 
 by the Secretary of State, is conclusive testimony of the verity 
 of the signature, and of the completion of the appointment; 
 and that the appointment conferred on him a legal right to the 
 office for the space of five years. 
 
 2d. That, having this legal title to the office, he has a 
 consequent right to the commission ; a refusal to deliver which 
 is a plain violation of that right, for which the laws of his 
 country afford him a remedy. 
 
 It remains to be inquired whether, 
 
 3d. He is entitled to the remedy for which he applies. This 
 depends on, 
 
 i st. The nature of the writ applied for; and, 
 
 2d. The power of tfiis court. 
 
 ist. The nature of the writ. 
 
 Blackstone, in the 3d volume of his Commentaries, page^ 
 1 10, defines a mandamus to be " a command issuing in the 
 king s name from the court of king s bench, and directed to any 
 person, corporation, or inferior court of judicature within the 
 king s dominions, requiring them to do some particular thing 
 therein specified, which appertains to their office and duty, 
 and which the court of king s bench has previously determined, 
 or at least supposes, to be consonant to right and justice." 
 
 Lord Mansfield, in 3 Burrow, 1266, in the case of The King 
 v. Baker et al., states, with much precision and explicitness, 
 the cases in which this writ may be used. 
 
 " Whenever," says that very able judge, " there is a right 
 to execute an office, perform a service, or exercise a franchise, 
 (more especially if it be in a matter of public concern, or at 
 tended with profit,) and a person is kept out of possession, or 
 dispossessed of such right, and has no other specific legal 
 remedy, this court ought to assist by mandamus, upon reasons 
 of justice, as the writ expresses, and upon reasons of public 
 policy, to preserve peace, order and good government." In 
 the same case he says, " this writ ought to be used upon all 
 
330 THE POLITICAL AND ECONOMIC 
 
 occasions where the law has established no specific remedy, 
 and where in justice and good government there ought to be 
 one." 
 
 In addition to the authorities now particularly cited, many 
 others were relied on at the bar, which show how far the 
 practice has conformed to the general doctrines that have been 
 just quoted. 
 
 This writ, if awarded, would be directed to an officer of 
 government, and its mandate to him would be, to use the 
 words of Blackstone, " to do a particular thing therein specified, 
 which appertains to his office and duty, and which the court 
 has previously determined, or at least supposes, to be consonant 
 to right and justice." Or, in the words of Lord Mansfield, 
 the applicant, in this case, has a right to execute an office of 
 public concern, and is kept out of possession of that right. 
 
 These circumstances certainly concur in this case. 
 
 Still, to render the mandamus a proper remedy, the officer 
 to whom it is to be directed, must be one to whom, on legal 
 principles, such writ may be directed; and the person apply 
 ing for it must be without any other specific and legal rem 
 edy. 
 
 ist. With respect to the officer to whom it would be directed. 
 The intimate political relation subsisting between the Presi 
 dent of the United States and the heads of departments, neces 
 sarily renders any legal investigation of the acts of one of 
 those high officers peculiarly irksome, as well as delicate; and 
 excites some hesitation with respect to the propriety of entering 
 into such investigation. Impressions are often received with 
 out much reflection or examination, and it is not wonderful 
 that in such a case as this the assertion, by an individual, of his 
 legal claims in a court of justice, to which claims it is the 
 duty of that court to attend, should at first view be considered 
 by some, as an attempt to intrude into the cabinet, and to in 
 termeddle with the prerogatives of the executive. 
 
 It is scarcely necessary for the court to disclaim all pre 
 tensions of such jurisdiction. An extravagance, so absurd 
 and excessive, could not have been entertained for a moment. 
 The province of the court is, solely, to decide on the rights 
 of individuals, not to inquire how the executive, or executive 
 officers, perform duties in which they have a discretion. Ques 
 tions in their nature political, or which are, by the constitution 
 
DOCTRINES OF JOHN MARSHALL 331 
 
 and laws, submitted to the executive, can never be made in 
 this court. 
 
 But, if this be not such a question; if, so far from being 
 an intrusion into the secrets of the cabinet, it respects a paper 
 which, according to law, is upon record, and to a copy of which 
 the law gives a right, on the payment of ten cents ; if it be no 
 intermeddling with a subject over which the executive can be 
 considered as having exercised any control; what is there in 
 the exalted station of the officer, which shall bar a citizen from 
 asserting, in a court of justice, his legal rights, or shall forbid 
 a court to listen to the claim, or to issue a mandamus directing 
 the performance of a duty, not depending on executive dis 
 cretion, but on particular acts of congress, and the general 
 principles of law? 
 
 If one of the heads of departments commits any illegal act, 
 under colour of his office, by which an individual sustains an 
 injury, it cannot be pretended that his office alone exempts 
 him from being sued in the ordinary mode of proceeding, and 
 being compelled to obey the judgment of the law. How, then, 
 can his office exempt him from this particular mode of decid 
 ing on the legality of his conduct, if the case be such a case 
 as would, were any other individual the party complained of, 
 authorize the process? 
 
 It is not by the office of the person to whom the writ is 
 directed, but the nature of the thing to be done, that the pro 
 priety or impropriety of issuing a mandamus is to be deter 
 mined. Where the head of a department acts in a case, in 
 which executive discretion is to be exercised; in which he is 
 the mere organ of executive will ; it is again repeated, that any 
 application to a court to control, in any respect, his conduct 
 would be rejected without hesitation. 
 
 But where he is directed by law to do a certain act affecting 
 the absolute rights of individuals, in the performance of 
 which he is not placed under the particular direction of the 
 President, and the performance of which the President can 
 not lawfully forbid, and therefore is never presumed to have 
 forbidden ; as for example, to record a commission, or a pat 
 ent for land, which has received all the legal solemnities; or 
 to give a copy of such record ; in such cases, it is not perceived 
 on what ground the courts of the country are further excused 
 from the duty of giving judgment that right be done to an 
 
332 THE POLITICAL AND ECONOMIC 
 
 injured individual, than if the same services were to be per 
 formed by a person not the head of a department. 
 
 This opinion seems not now, for the first time, to be taken 
 up in this country. 
 
 It must be well recollected that in 1792, an act passed di 
 recting the Secretary of War to place on the pension list such 
 disabled officers and soldiers as should be reported to him, 
 by the circuit courts, which act, so far as the duty was imposed 
 on the courts, was deemed unconstitutional; but some of the 
 judges thinking that the law might be executed by them in the 
 character of commissioners, proceeded to act, and to report in 
 that character. 
 
 This law being deemed unconstitutional at the circuits was 
 repealed, and a different system was established ; but the ques 
 tion whether those persons who had been reported by the 
 judges, as commissioners, were entitled, in consequence of that 
 report, to be placed on the pension list, was a legal question, 
 properly determinable in the courts, although the act of placing 
 such pensions on the list was to be performed by the head 
 of a department. 
 
 That this question might be properly settled, congress passed 
 an act in February, 1793, making it the duty of the Secretary 
 of War, in conjunction with the attorney general, to take such 
 measures as might be necessary to obtain an adjudication of 
 the Supreme Court of the United States on the validity of any 
 such rights, claimed under the act aforesaid. 
 
 After the passage of this act, a mandamus was moved for, 
 to be directed to the Secretary of War, commanding him to 
 place on the pension list, a person stating himself to be on the 
 report of the judges. 
 
 There is, therefore, much reason to believe, that this mode 
 of trying the legal right of the complainant was deemed by the 
 head of a department, and by the highest law officer of the 
 United States, the most proper which could be selected for 
 the purpose. 
 
 When the subject was brought before the court, the de 
 cision was, not that a mandamus would not lie to the head of 
 a department directing him to perform an act, enjoined by law, 
 in the performance of which an individual had a vested in 
 terest; but that a mandamus ought not to issue in that case; 
 
DOCTRINES OF JOHN MARSHALL 333 
 
 the decision necessarily to be made of the report of the com 
 missioners did not confer on the applicant a legal right. 
 
 The judgment, in that case, is understood to have decided 
 the merits of all claims of that description ; and the persons, on 
 the report of the commissioners, found it necessary to pursue 
 the mode prescribed by the law subsequent to that which had 
 been deemed unconstitutional, in order to place themselves 
 on the pension list. 
 
 The doctrine, therefore, now advanced, is by no means a 
 novel one. 
 
 It is true that the mandamus, now moved for, is not for 
 the performance of an act expressly enjoined by the stat 
 ute. 
 
 It is to deliver a commission; on which subject the acts of 
 congress are silent. This difference is not considered as af 
 fecting the case. It has already been stated that the applicant 
 has, to that commission a vested legal right, of which the 
 executive cannot deprive him. He has been appointed to an 
 office, from which he is not removable at the will of the ex 
 ecutive; and being so appointed, he has a right to the com 
 mission which the secretary has received from the President 
 for his use. The act of congress does not indeed order the 
 Secretary of State to send it to him, but it is placed in his 
 hands for the person entitled to it ; and cannot be more lawfully 
 withheld by him than by any other person. 
 
 It was at first doubted whether the action of detinue was not 
 a specific legal remedy for the commission which has been 
 withheld from Mr. Marbury; in which case a mandamus would 
 be improper. But this doubt has yielded to the consideration 
 that the judgment in detinue is for the thing itself, or its 
 value. The value of a public office not to be sold is incapable 
 of being ascertained ; and the applicant has a right to the of 
 fice itself, or to nothing. He will obtain the office by obtaining 
 the commission, or a copy of it from the record. 
 
 This, then, is a plain case for a mandamus, either to deliver 
 the commission, or a copy of it from the record; and it only 
 remains to be inquired, 
 
 Whether it can issue from this court. 
 
 The act to establish the judicial courts of the United States 
 authorizes the Supreme Court " to issue writs of mandamus 
 
334 THE POLITICAL AND ECONOMIC 
 
 in cases warranted by the principles and usages of law, to any 
 courts appointed, or persons holding office, under the authority 
 of the United States." 
 
 The Secretary of State, being a person holding an office 
 under the authority of the United States, is precisely within the 
 letter of the description, and if this court is not authorized to 
 issue a writ of mandamus to such an officer, it must be be 
 cause the law is unconstitutional, and therefore absolutely 
 incapable of conferring the authority, and assigning the duties 
 which its words purport to confer and assign. 
 
 The constitution vests the whole judicial power of the United 
 States in one Supreme Court, and such inferior courts as con 
 gress shall, from time to time, ordain and establish. This 
 power is expressly extended to all cases arising under the 
 laws of the United States ; and, consequently, in some form, 
 may be exercised over the present case; because the right 
 claimed is given by a law of the United States. 
 
 In the distribution of this power it is declared that " the 
 Supreme Court shall have original jurisdiction in all cases af 
 fecting ambassadors, other public ministers and consuls, and 
 those in which a state shall be a party. In all other cases, 
 the Supreme Court shall have appellate jurisdiction." 
 
 It has been insisted, at the bar, that as the original grant of 
 jurisdiction, to the Supreme and inferior courts, is general, 
 and the clause, assigning original jurisdiction to the Supreme 
 Court, contains no negative or restrictive words, the power re 
 mains to the legislature, to assign original jurisdiction to that 
 court in other cases than those specified in the article which 
 has been recited; provided those cases belong to the judicial 
 power of the United States. 
 
 If it had been intended to leave it in the discretion of the 
 legislature to apportion the judicial power between the su 
 preme and inferior courts according to the will of that body, 
 it would certainly have been useless to have proceeded further 
 than to have defined the judicial power, and the tribunals in 
 which it should be invested. The subsequent part of the 
 section is mere surplusage, is entirely without meaning, if 
 such is to be the construction. If congress remains at liberty 
 to give this court appellate jurisdiction, where the constitu 
 tion has declared their jurisdiction shall be original; and 
 original jurisdiction where the constitution has declared it 
 
DOCTRINES OF JOHN MARSHALL 335 
 
 shall be appellate, the distribution of jurisdiction, made in the 
 constitution, is form without substance. 
 
 Affirmative words are often, in their operation, negative of 
 other objects than those affirmed ; and in this case, a negative 
 or exclusive sense must be given to them, or they have no 
 operation at all. 
 
 It cannot be presumed that any clause in the constitution is 
 intended to be without effect ; and, therefore, such a construc 
 tion is inadmissible, unless the words require it. 
 
 If the solicitude of the convention, respecting our peace with 
 foreign powers, induced a provision that the Supreme Court 
 should take original jurisdiction in cases which might be sup 
 posed to affect them ; yet the clause would have proceeded no 
 further than to provide for such cases, if no further restric 
 tion on the powers of congress had been intended. That 
 they should have appellate jurisdiction in all other cases, with 
 such exceptions as congress might make, is no restriction; 
 unless the words be deemed exclusive of original jurisdiction. 
 
 When an instrument organizing fundamentally a judicial 
 system divides it into one supreme, and so many inferior 
 courts as the legislature may ordain and establish; then 
 enumerates its powers, and proceeds so far to distribute them, 
 as to define the jurisdiction of the Supreme Court by declaring 
 the cases in which it shall take original jurisdiction, and that 
 in others it shall take appellate jurisdiction; the plain import 
 of the words seems to be, that in one class of cases its juris 
 diction is original, and not appellate; in the other it is appel 
 late, and not original. If any other construction would render 
 the clause inoperative, that is an additional reason for re 
 jecting such other construction, and for adhering to their ob 
 vious meaning. 
 
 To enable this court then, to issue a mandamus, it must be 
 shown to be an exercise of appellate jurisdiction, or to be neces 
 sary to enable them to exercise appellate jurisdiction. 
 
 It has been stated at the bar that the appellate jurisdiction 
 may be exercised in a variety of forms, and that if it be the 
 will of the legislature that a mandamus should be used for 
 that purpose, that will must be obeyed. This is true, yet the 
 jurisdiction must be appellate, not original. 
 
 It is the essential criterion of appellate jurisdiction, that 
 it revises and corrects the proceedings in a cause already insti- 
 
336 THE POLITICAL AND ECONOMIC 
 
 tuted, and does not create that cause. Although, therefore, a 
 mandamus may be directed to courts, yet to issue such a writ to 
 an officer for the delivery of a paper, is in effect the same 
 as to sustain an original action for that paper, and, therefore, 
 seems not to belong to appellate, but to original jurisdiction. 
 Neither is it necessary in such a case as this, to enable the 
 court to exercise its appellate jurisdiction. 
 
 The authority, therefore, given to the Supreme Court, by 
 the act establishing the judicial courts of the United States, 
 to issue writs of mandamus to public officers, appears not to 
 be warranted by the constitution; and it becomes necessary 
 to inquire whether a jurisdiction so conferred can be exer 
 cised. 
 
 The question, whether an act, repugnant to the constitution, 
 can become the law of the land, is a question deeply interesting 
 to the United States; but happily, not of an intricacy propor 
 tioned to its interest. It seems only necessary to recognize 
 certain principles, supposed to have been long and well es 
 tablished, to decide it. 
 
 That the people have an original right, to establish for 
 their future government, such principles, as, in their opinion, 
 shall most conduce to their own happiness is the basis on 
 which the whole American fabric has been erected. The exer 
 cise of this original right is a very great exertion; nor can it, 
 nor ought it, to be frequently repeated. The principles, there 
 fore, so established, are deemed fundamental. And as the 
 authority from which they proceed is supreme, and can sel 
 dom act, they are designed to be permanent. 
 
 This original and supreme will organizes the government, 
 and assigns to different departments their respective powers. 
 It may either stop here, or establish certain limits not to be 
 transcended by those departments. 
 
 The government of the United States is of the latter de 
 scription. The powers of the legislature are defined and 
 limited; and that those limits may not be mistaken, or for 
 gotten, the constitution is written. To what purpose are 
 powers limited, and to what purpose is that limitation com 
 mitted to writing, if these limits may, at any time, be passed 
 by those intended to be restrained? The distinction between 
 a government with limited and unlimited powers is abolished, 
 if those limits do not confine the persons on whom they are 
 
DOCTRINES OF JOHN MARSHALL 337 
 
 imposed, and if acts prohibited and acts allowed, are of equal 
 obligation. It is a proposition too plain to be contested, that 
 the constitution controls any legislative act repugnant to it; 
 or, that the legislature may alter the constitution by an or 
 dinary act. 
 
 Between these alternatives there is no middle ground. The 
 constitution is either a superior paramount law, unchangeable 
 by ordinary means, or it is on a level with ordinary legislative 
 acts, and, like other acts, is alterable when the legislature 
 shall please to alter it. 
 
 If the former part of the alternative be true, then a legis 
 lative act contrary to the constitution is not law : if the latter 
 part be true, then written constitutions are absurd attempts, 
 on the part of the people, to limit a power in its own nature 
 illimitable. 
 
 Certainly all those who have framed written constitutions 
 contemplate them as forming the fundamental and paramount 
 law of the nation, and, consequently, the theory of every such 
 government must be, that an act of the legislature, repugnant 
 to the constitution, is void. 
 
 This theory is essentially attached to a written constitution, 
 and, is consequently, to be considered by this court, as one 
 of the fundamental principles of our society. It is not there 
 fore to be lost sight of in the further consideration of this 
 subject. 
 
 If an act of the legislature, repugnant to the constitution, 
 is void, does it, notwithstanding its invalidity, bind the courts, 
 and oblige them to give it effect ? Or, in other words, though 
 it be not law, does it constitute a rule as operative as if it 
 was a law ? This would be to overthrow in fact what was es 
 tablished in theory ; and would seem, at first view, an absurdity 
 too gross to be insisted on. It shall, however, receive a more 
 attentive consideration. 
 
 It is emphatically the province and duty of the judicial de 
 partment to say what the law is. Those who apply the rule 
 to particular cases, must of necessity expound and interpret 
 that rule. If two laws conflict with each other, the courts 
 must decide on the operation of each. 
 
 So if a law be in opposition to the constitution; if both 
 the law and the constitution apply to a particular case, so that 
 the court must either decide that case conformably to the law, 
 
338 THE POLITICAL AND ECONOMIC 
 
 disregarding the constitution; or conformably to the consti 
 tution, disregarding the law; the court must determine which 
 of these conflicting rules governs the case. This is of the 
 very essence of judicial duty. 
 
 If, then, the courts are to regard the constitution, and the 
 constitution is superior to any ordinary act of the legislature, 
 the constitution and not such ordinary act, must govern the 
 case to which they both apply. 
 
 Those, then, who controvert the principle that the consti 
 tution is to be considered, in court, as a paramount law, are 
 reduced to the necessity of maintaining that courts must close 
 their eyes on the constitution, and see only the law. 
 
 This doctrine would subvert the very foundation of all 
 written constitutions. It would declare that an act which, 
 according to the principles and theory of our government, is 
 entirely void, is yet, in practice, completely obligatory. It 
 would declare that if the legislature shall do what is ex 
 pressly forbidden, such act, notwithstanding the express pro 
 hibition, is in reality effectual. It would be giving to the legis 
 lature a practical and real omnipotence, with the same breath 
 which professes to restrict their powers within narrow limits. 
 It is prescribing limits, and declaring that those limits may be 
 passed at pleasure. 
 
 That it thus reduces to nothing what we have deemed the 
 greatest improvement on political institutions, a written con 
 stitution, would of itself be sufficient in America, where written 
 constitutions have been viewed with so much reverence, for 
 rejecting the construction. But the peculiar expressions of 
 the constitution of the United States furnish additional argu 
 ments in favour of its rejection. 
 
 The judicial power of the United States is extended to all 
 cases arising under the constitution. 
 
 Could it be the intention of those who gave this power, 
 to say that in using it the constitution should not be looked 
 into? That a case arising under the constitution should be 
 decided without examining the instrument under which it 
 arises? 
 
 This is too extravagant to be maintained. 
 
 In some cases, then, the constitution must be looked into 
 by the judges. And if they can open it at all, what part of 
 it are they forbidden to read or to obey ? 
 
DOCTRINES OF JOHN MARSHALL 339 
 
 There are many other parts of the constitution which serve 
 to illustrate this subject. 
 
 It is declared that " no tax or duty shall be laid on articles 
 exported from any state." Suppose a duty on the export of 
 cotton, of tobacco, or of flour ; and a suit instituted to recover 
 it. Ought judgment to be rendered in such a case? ought the 
 judges to close their eyes on the constitution, and only see the 
 law? 
 
 The constitution declares " that no bill of attainder or ex 
 post facto law shall be passed." 
 
 If, however, such a bill should be passed, and a person 
 should be prosecuted under it; must the court condemn to 
 death those victims whom the constitution endeavours to pre 
 serve ? 
 
 " No person," says the constitution, " shall be convicted of 
 treason unless on the testimony of two witnesses to the same 
 overt act, or on confession in open court." 
 
 Here the language of the constitution is addressed especially 
 to the courts. It prescribes, directly for them, a rule of evi 
 dence not to be departed from. If the legislature should 
 change that rule, and declare one witness, or a confession out 
 of court, sufficient for conviction, must the constitutional prin 
 ciple yield to the legislative act? 
 
 From these, and many other selections which might be made, 
 it is apparent, that the framers of the constitution contem 
 plated that instrument as a rule for the government of the 
 courts, as well as of the legislature. 
 
 Why otherwise does it direct the judges to take an oath to 
 support it ? This oath certainly applies in an especial manner, 
 to their conduct in their official character. How immoral 
 to impose it on them, if they were to be used as the instru 
 ments, and the knowing instruments, for violating what they 
 swear to support. 
 
 The oath of office, too, imposed by the legislature, is com 
 pletely demonstrative of the legislative opinion on this sub 
 ject. It is in these words: " I do solemnly swear that I will 
 administer justice without respect to persons, and do* equal 
 right to the poor and to the rich; and that I will faithfully and 
 impartially discharge all the duties incumbent on me as, ac 
 cording to the best of my abilities and understanding, agree 
 ably to the constitution and laws of the United States. * 
 
340 THE POLITICAL AND ECONOMIC 
 
 Why does a judge swear to discharge his duties agreeably 
 to the constitution of the United States, if that constitution 
 forms no rule for his government? if it is closed upon him, 
 and cannot be inspected by him ? 
 
 If such be the real state of things, this is worse than solemn 
 mockery. To prescribe, or to take this oath, becomes equally 
 a crime. 
 
 It is also not entirely unworthy of observation, that in de 
 claring what shall be the supreme law of the land, the consti 
 tution itself is first mentioned ; and not the laws of the United 
 States generally, but those only which shall be made in pur 
 suance of the constitution, have that rank. 
 
 Thus, the particular phraseology of the constitution of the 
 United States confirms and strengthens the principle, supposed 
 to be essential to all written constitutions, that a law repugnant 
 to the constitution is void; and that courts, as well as other 
 departments, are bound by that instrument. 
 
 The rule must be discharged. 72 
 
 V^ARSHALL S DECISION IN GIBBONS v. OGDEN 
 
 The judicial construction of the commerce clause begins 
 in 1824 with Chief Justice Marshall s opinion in Gibbons v. 
 Ogden, wherein a grant of land the State of New York for 
 the exclusive right to navigate the waters of New York with 
 boats propelled by fire or steam was held void as repugnant 
 to the commerce clause of the Constitution, so far as the act 
 prohibited vessels licensed by the laws of the United States 
 for carrying on the coast trade from navigating the said waters 
 by fire or steam. 
 
 The broad and comprehensive construction of the term 
 " commerce " in this opinion is the basis of all subsequent 
 decisions construing the commerce clause, and is the recog 
 nized source of authority. Commerce is more than traffic; 
 it includes intercourse. The power to regulate is the power 
 to prescribe the rules by which commerce is to be governed. 
 This power like all others vested in Congress is complete in 
 itself, and may be exercised t ftl$ fltmost extent, and acknowl 
 edges no limitations other than as prescribed in the Constitu 
 tion. The Court said that the powers over commerce with for- 
 72 Cranch, sec. 154-180 inclusive. 
 
DOCTRINES OF JOHN MARSHALL 341 
 
 eign nations and among the various states is vested in Con 
 gress as absolutely as it would be in a single government having 
 in its Constitution the same restrictions on the exercise of the 
 power as is found in the Constitution of the United States. 
 The power comprehended navigation within the limits of every 
 State so far as navigation may in any manner connected with 
 commerce with foreign nations or among the several states, or 
 with the Indian Tribes, and therefore it passed beyond the 
 jurisdictional line of New York and included the public waters 
 of the State which were connected with foreign or interstate 
 commerce. 
 
 In this opinion we find that the most important and far 
 reaching declaration was that of the supremacy of the Federal 
 power, so that in any case of conflict the act of Congress was 
 supreme, and state laws must yield thereto, though enacted 
 in the exercise of powers which are not controverted. In the 
 Passenger Cases 73 the rule declared in this case was applied 
 in holding invalid certain State statutes imposing taxes upon 
 alien passengers. It was said that included navigation and in 
 tercourse and the transportation of passengers. 
 
 The Court said in the Pensacola Telegraph Company case 74 
 that since the case of Gibbons v. Ogden it had never been 
 doubted that commercial intercourse was an element which 
 comes within the power of regulation by Congress, and that 
 the power thus granted was not confined to the instrumental 
 ities of commerce known or in use when the Constitution was 
 adopted, but kept pace with the progress of the country, adapt 
 ing themselves to the new developments of time and circum 
 stances. In the language of the Court : " They extend from 
 the horse with its rider to the stage coach, from the sailing 
 vessel to the steamboat, from the coach and steamboat to the 
 railroad, and from the railroad to the telegraph, as these new 
 agencies are successively brought into use to meet the de 
 mands of increasing population and wealth. They were in 
 tended for the government of the business to which they re 
 late at all times and under all circumstances." In a late case 
 it was said T5 that the commerce which Congress could regulate 
 
 737 Howard 283 (1849), 12 L.Ed. 702. 
 
 74 96 U. S. i (1877), 24 L.Ed. 708, 711. Construing act of July 24, 
 1866, as a prohibition of all State monopolies in interstate telegraph 
 business. 
 
 75 W. U. Tel. Co. v. Pendleton, 122 U. S. 347 (1887), 30 L.Ed. 1187. 
 
342 THE POLITICAL AND ECONOMIC 
 
 included not only the interchange and transportation of com 
 modities or visible and tangible things, but the carriage of 
 persons and the transmission by telegraph of ideas, orders 
 and intelligence. Importation into one state from another 
 is the indispensable element and the test of interstate com 
 merce; and every negotiation, contract, trade and dealing be 
 tween citizens of different States which contemplates and uses 
 such importation, whether it be of goods, persons or informa 
 tion, is a transaction of interstate commerce 76 which com 
 merce therefore includes not only communication by telephone 
 between points in different States, 77 but also communication 
 through a correspondence school, where the intercourse and 
 communication relates to matters of regular and continuous 
 business and the conduct of such business, therefore, through 
 local agencies is exempt from state control or interference. 78 
 
 COMMERCE POWERS 
 
 Definition: The opinion in the case of Gibbon v. Ogden 79 
 was delivered by Chief Justice Marshall and is regarded as 
 one of his greatest judicial utterances, the path before him 
 being untrodden by any Federal decision save his own in the 
 Brig Wilson case. The opinion which Marshall delivered, 
 and in which no authority was cited was so able, so profound 
 and masterful that it announced the principle which all future 
 decisions have followed. In this great decision, the chief 
 justice among other things said: 
 
 " As men whose intentions require no concealment, generally 
 employ the words which most directly and aptly express the 
 ideas they intend to convey, the enlightened patriots who 
 
 78 From opinion of Sanborn, J., in Butler Brothers Shoe Co. v. United 
 States Rubber Co., 156 Federal, i, C. C. A. 8th Cir., quoted by the Su 
 preme Court, in International Text-book Co. v. Pigg, 217 U. S. 91 (1910). 
 
 77 Richmond v. Southern Bell Tel. Co., 174 U. S. 761. U. S. v. West- 
 man, 182 Fed. 1017 (Ore. 1910). The White Slave Traffic Act was sus 
 tained as within the commerce power of Congress. It was also sustained 
 by the District Court, E. D. of Texas, 187 Fed. 992 (1911), holding that 
 the transportation of persons was commerce and that Congress, under its 
 power of regulation as per Lottery Cases, could prohibit a class of com 
 merce in the interest of Public Morals. 
 
 78 International Text-book Co. v. Pigg. 217 U. S. 91, where it was 
 held that a corporation working under a system of credits through a list of 
 attorneys of different states was held liable to a state license tax. 
 
 79 9 Wheaton, i. 
 
DOCTRINES OF JOHN MARSHALL 343 
 
 framed our Constitution, and the people who adopted it, must 
 be understood to have employed words in their natural sense, 
 and to have intended what they have said. If, from the im 
 perfection of human language, there should be serious doubts 
 respecting the extent of any given power, it is a well settled 
 rule, that the objects for which it was given, especially when 
 those objects are expressed in the instrument itself, should 
 have great influence in the construction. We know of no 
 reason for excluding this rule from the present case. The 
 grant does not convey power which might be beneficial to the 
 grantor, if retained by himself, or which can enure solely 
 to the benefit of the grantee; but is an investment of power 
 for the general advantage, in the hands of agents selected for 
 that purpose ; which power can never be exercised by the peo 
 ple themselves, but must be placed in the hands of agents, or 
 lie dormant. We know of no rule for construing the extent of 
 such powers, other than is given by the language of the in 
 strument which confers them, taken in connection with the 
 purposes for which they were conferred. 
 
 " Commerce, undoubtedly, is traffic, but it is something more ; 
 it is intercourse. It describes the commercial intercourse be 
 tween nations, and parts of nations, in all its branches, and is 
 regulated by prescribing rules for carrying on that inter 
 course. 
 
 " If commerce does not include navigation, the government 
 of the Union has no direct power over that subject, and can 
 make no law prescribing what shall constitute American ves 
 sels, or requiring that they shall be navigated by American 
 seamen. Yet this power has been exercised from the com 
 mencement of the government, has been exercised with the con 
 sent of all, and has been understood by all to be a commercial 
 regulation. All America understands, and has uniformly 
 understood, the word * commerce, to comprehend navigation. 
 It was so understood, and must have been so understood when 
 the Constitution was framed. The power over commerce, in 
 cluding navigation, was one of the primary objects for which 
 the people of America adopted their government, and must 
 have been contemplated in forming it. The convention must 
 have used the word in that sense, because all have understood 
 it in that sense; and the attempt to restrict it comes too 
 late. 
 
344 THE POLITICAL AND ECONOMIC 
 
 The word used in the Constitution, then, comprehends, 
 and has always been understood to comprehend, navigation; 
 and a power to regulate navigation is as expressly granted as 
 if that term had been added to the word commerce. 
 
 After defining the term " commerce," as used in the Consti 
 tution, and having decided that it embraced navigation, Mar 
 shall then proceeded to consider the question : " To what 
 commerce does this power extend ? " He said : " The Consti 
 tution informs us, to commerce with foreign nations and 
 among the several States, and with the Indian tribes." 
 
 Later in the decision he continued : " It has, we believe, 
 been universally admitted, that these words comprehend every 
 species of commercial intercourse between the United States 
 and foreign nations. No sort of trade can be carried on be 
 tween this country and any other, to which this power does 
 not extend. . . . Commerce, as the word is used in the Con 
 stitution, is a unit, every part of which is indicated by the 
 term." 
 
 He next came to the subject of commerce between the 
 States. He said : " The subject to which the power is next 
 applied is to commerce among the several States. The word 
 among means intermingled with. A thing which is among 
 others is intermingled with them. Commerce among the 
 States, can not stop at the external boundary line of each 
 State, but may be introduced into the interior." In order 
 to distinguish what may be called State commerce from the 
 broader expression of commerce among the States, and to 
 establish the rule for the discrimination in such cases, Marshall 
 said : " It is not intended to say that these words compre 
 hend that commerce which is completely internal, which is 
 carried on between man and man in a State, or between dif 
 ferent parts of the same State, and which does not extend 
 to, or affect other States. Such a power would be incon 
 venient, and is certainly unnecessary. 
 
 " Comprehensive as the word among is, it may very 
 properly be restricted to that commerce which concerns more 
 States than one. The phrase is not one which would prob 
 ably have been selected to indicate the completely interior traf 
 fic of a State, because it is not an apt phrase for that 
 purpose ; and the enumeration of the particular classes of 
 commerce to which the power was to be extended, would not 
 
DOCTRINES OF JOHN MARSHALL 345 
 
 have been made, had the intention been to extend the power 
 to every description. The enumeration presupposes something 
 not enumerated; and that something, if we regard the lan 
 guage, or the subject of the sentence, must be the exclusively 
 internal commerce of a State. The genius and character of 
 the whole government seem to be, that its action is to be applied 
 to all the external concerns of the nation, and to those internal 
 concerns, which affect the States generally; but not to those 
 which are completely within a particular State, which do not 
 affect other States, and with which it is not necessary to in 
 terfere, for the purpose of executing some of the general 
 powers of the government. The completely internal com 
 merce of a State, then, may be considered as reserved for the 
 State itself. 
 
 " But in regulating commerce with foreign nations, the 
 power of Congress does not stop at the jurisdictional lines 
 of the several States. It would be a very useless power, if 
 it could not pass those lines. The commerce of the United 
 States with foreign nations, is that of the whole United States. 
 Every district has a right to participate in it. The deep 
 streams which penetrate our country in every direction, pass 
 through the interior of almost every State in the Union, and 
 furnish the means of exercising this right. If Congress has 
 the power to regulate it, that power must be exercised whenever 
 the subject exists. If it exists within the States, if a for 
 eign voyage may commence or terminate at a port within a 
 State. 
 
 " This principle is, if possible, still more clear, when applied 
 to commerce among the several States. They either join each 
 other in which case they are separated by a mathematical line, 
 or they are remote from each other, in which case other States 
 lie between them. What is commerce among them ; and 
 how is it to be conducted ? Can a trading expedition between 
 two adjoining States commence and terminate outside of each? 
 And if the trading intercourse be between two States remote 
 from each other, must it not commence in one, terminate in the 
 other, and probably pass through a third? Commerce among 
 the States, must, of necessity, be commerce within the States. 
 In the regulation of trade with the Indian Tribes, the action 
 of the law, especially when the Constitution was made, was 
 chiefly within a State. The power of Congress, then, whatever 
 
I 
 
 346 THE POLITICAL AND ECONOMIC 
 
 it may be, must be exercised within the territorial jurisdiction 
 of the several States. . . . 
 
 " We are now arrived at the inquiry what is this power? 
 It is the power to regulate; that is, to prescribe the rule by 
 which commerce is to be governed. This power, like all others 
 vested in Congress, is complete in itself, may be exercised to its 
 utmost extent, and acknowledges no limitations, other than 
 are prescribed in the Constitution. . . . The power of Con 
 gress, then, comprehends navigation within the limits of every 
 State in the Union, so far as that navigation may be, in any 
 manner, connected with commerce with foreign nations, or 
 among the several States, or with the Indian Tribes. It 
 may, of consequence, pass the jurisdictional line of New York, 
 and act upon the very waters to which the prohibition now 
 under consideration applies." 
 
 By analyzing this great opinion we see that Marshall denned 
 with masterful genius the important term and words in this 
 clause, and settled many questions arising out of their con 
 sideration, and made them all so clear that no mistake could 
 be made in the meaning of his language. 
 
 ( i ) . He denned commerce, and said it was traffic and inter 
 course, and that it described commercial intercourse between 
 nations, and parts thereof. 
 
 (2). Said that the language of this clause shows that com 
 merce includes navigation. 
 
 (3). Decided that every species of commercial intercourse 
 between the United States and foreign nations is compre 
 hended; that no sort of trade can be carried on between this 
 and other countries to which this power does not extend ; that 
 commerce as used in the Constitution, is a unit, every part of 
 which is indicated by the term. 
 
 (4). Denned the word "among" as meaning " intermin 
 gled with." Made it quite plain that it was restricted to 
 that commerce which concerned more States than one. 
 
 (5). Commerce that is completely internal not compre 
 hended in this clause, and concerns only the State where carried 
 on. 
 
 (6). In regulating commerce with foreign nations the power 
 of Congress does not stop at State lines, because it is that 
 of the whole United States. 
 
 (7). Commerce among the States must be commerce with 
 
DOCTRINES OF JOHN MARSHALL 347 
 
 the states necessarily, and the power of Congress must be ex 
 ercised within the territorial jurisdiction of the States. 
 
 (8). In regard to " what is this power of Congress?" he 
 said, it is the power to regulate, the power to prescribe the 
 rule by which commerce shall be governed. That it is vested 
 in Congress, is complete in itself, and may be exercised to its 
 utmost extent, for it has no limitations beyond those found in 
 the Constitution. 
 
 Every definition of commerce which has been given by the 
 courts since this decision, reflects the definition given by Chief 
 Justice Marshall. 
 
 In regard to power of Congress over commerce among the 
 States, Marshall says : 80 
 
 f " In regulating commerce with foreign nations, the power of 
 Congress does not stop at the jurisdictional lines of the several 
 States. It would be a very useless power if it could not pass 
 those lines. The commerce of the United States with foreign 
 nations, is that of the whole United States. If Congress has 
 the power to regulate it, that power must be exercised when 
 ever the subject exists, and this principle, if possible, is stil 
 more clear when applied to commerce among the States. 
 
 This important case which is so often discussed is given a 
 place here for several reasons. One of them being to show 
 what the method of the Expounder of the Constitution was 
 like, and the thorough manner of attacking the various details. 
 Many think that this opinion is overlauded, and that it lays 
 down too barely and didactically, with too small a basis of 
 argument and history, the American doctrine of Constitutional 
 law. 
 
 80 Gibbons v. Ogden, 9 Wheaton, 195. 
 
CHAPTER VII 
 
 THE DEATH OF CHIEF JUSTICE MARSHALL 
 
 CHIEF JUSTICE MARSHALL died July 6, 1835, a ^ tne a g e f 
 eighty, having seen during his lifetime the firm establishment 
 of nearly all the fundamental doctrines of American Consti- 
 tional and International Law as applied by the courts of the 
 country. 
 
 The bulk of this work was done by Chief Justice Marshall 
 himself. As I have mentioned elsewhere in this volume, there 
 were but five cases of any importance before the Supreme 
 Court of the United States prior to 1801, when John Marshall 
 was made Chief Justice. ^ How great was his share of the 
 work may be judged by the following figures. Between 1801 
 and 1835 there were 2 decisions of a Constitutional nature, 
 in 36, of which Marshall wrote the opinion. Of a total of 
 1,215 cases during that period, in 94 no opinions were filed, 
 in 15 the decision was " by the court," and of the remaining 
 1,106 cases Marshall delivered the opinion in 519. 
 
 During the same period of time there were 196 cases in 
 volving questions of International Law, or in some way affect 
 ing international relations. In 80 of these the opinion was 
 delivered by Marshall ; in 37, by Story ; in 28, by Johnson ; 
 in one each by Baldwin, Cushing, and Duvall ; and in 8 the 
 opinion was given " by the court." 1 
 
 No doubt the members of the legal profession at that time 
 looked forward to the appointment of Judge Joseph Story 
 as Marshall s successor. But, as Jackson s phrase put it, 
 " the school of Story and Kent " could expect no favors at 
 the hands of the President, for their political constitutional 
 views differed too widely. Story wrote : " Whoever suceeds 
 Marshall will have a most painful and discouraging duty. He 
 will follow a man who cannot be equalled, and all the public 
 will see or think they see the difference. ... I take it for 
 granted that all of us who are on the bench are hors de com 
 bat." 
 
 1 Address by John Bassett Moore before the Delaware State Bar As 
 sociation, February 5th, 1901. 
 
 348 
 
DOCTRINES OF JOHN MARSHALL 349 
 
 John Quincy Adams, in his diary of July 10, 1835, says: 
 " John Marshall died at Philadelphia last Monday. He was 
 one of the most eminent men that this country has ever pro 
 duced a Federalist of the Washington School. The As 
 sociate Judges from the time of his appointment have generally 
 been taken from the Democratic or Jeffersonian party. Not 
 one of them, excepting Story, has been a man of great ability. 
 Several of them have been men of strong prejudices, warm 
 passions, and contracted minds ; one of them occasionally in 
 sane. Marshall, by the ascendancy of his genius, by the 
 amenity of his deportment, and by the imperturbable command 
 of his temper, has given a permanent and systematic character 
 to the decisions of the Court, and settled many great consti 
 tutional questions favorably to the continuance of the Union./ 
 Marshall has cemented the Union which the crafty and quix 
 otic democracy of Jefferson had a perpetual tendency to dis 
 solve. Jefferson hated and dreaded him. It is much to be 
 feared that a successor will be appointed of a very different 
 character. The President of the United States now in office, 
 has already appointed three Judges of the Supreme Court ; 
 with the next appointment he will have constituted the Chief 
 Justice and a majority of the Court. He has not yet made 
 one good appointment. His Chief Justice will be no better 
 than the rest." 
 
 Six months after Chief Justice Marshall s death Roger B. 
 Taney, of Maryland, was appointed by President Jackson. 
 As Charles Warren in " The History of the American Bar " 
 says, " This was a surprise to most of the Bar." Chief Justice 
 Taney s decisions showed a decided reaction from the central 
 izing views of Chief Justice Marshall. This was first seen 
 in three cases in 1837, in each of which a State Statute al 
 leged to be in violation of the Federal Constitution was upheld. 
 
BIBLIOGRAPHY 
 
 ANECDOTES of John Marshall. In World s Work, Vol. I, Feb. 
 
 1901, pp. 394-395- 
 
 "BARRE, W. L. John Marshall. In his " Lives of Illustrious 
 Men of America," pp. 426-452. Cincinnati, 1859. 8. 
 
 BINNEY, HORACE. An eulogy on the life and character of John 
 Marshall, Chief Justice of the Supreme Court of the United 
 States. Philadelphia: J. Crissy & G. Goodman, 1835. 70 
 pp. 8. 
 
 BINNEY, HORACE. Same. In Waldie, A. Select Circulating 
 Library, Vol.. 6, pp. 3 2 7-335- Philadelphia, 1835. 4. 
 
 BINNEY, HORACE. Binney s eulogy on Chief Justice Marshall. 
 In " American Jurist," Vol. 14, Oct., 1835, pp. 462-465. 
 
 BLACK, JOHN C. John Marshall. In Illinois State Bar Asso 
 ciation. Proceedings, Vol. 20, pt. 2, July 14-15, 1896, pp. 
 25-45. 
 
 BLACK, JOHN C. John Marshall. In Albany Law Journal. 
 Vol. 54, July 25, 1896, pp. 55-62. 
 
 BRADLEY, JOSEPH P. Saint Memin s Portrait of Marshall. In 
 Century Magazine, Vol. 38, Sept., 1889, pp. 778-781. 
 
 BROOKS, ELBRIDGE S. The Story of John Marshall, of Rich 
 mond, called " The great Chief Justice." In his " Historic 
 Americans," pp. 161-174. New York, 1899. 8. 
 
 BROWNE, IRVING. John Marshall. In his " Short Studies of 
 Great Lawyers," pp. 201-217. Albany, N. Y., 1878. 
 
 BRYANT, JAMES R. M. Eulogium on Chief Justice Marshall, de 
 livered in the Unitarian church, Washington city, on the 
 24th of September, 1835, at the request of the Union 
 literary society. Washington : Printed by Jacob Gideon, Jr., 
 1835. 16 pp. 
 
 BARNES, WILLIAM HORATIO. " The Supreme Court of the 
 United States : a series of Biographies." With an introduc 
 tion, by Samuel F. Miller. Washington, D. C. : W. H. 
 Barnes & Co., 1877. ( 2 )> IJ 6 pp. Portraits. 4. 
 
 BATEMAN, HORATIO. Biographies of Two Hundred and Fifty 
 Distinguished National Men. 1st ed. New York; John T. 
 Giles & Co., 1871. 12. P. 50. 
 
 CARSON, HAMPTON LAWRENCE. The Supreme Court of the 
 United States : its History, and its Centennial Celebration, 
 Feb. 4, 1890. Prepared under direction of the Judiciary 
 Centennial Committee. Philadelphia: A. R. Keller Co. 
 
 350 
 
BIBLIOGRAPHY 351 
 
 1892. 2 vols. Portraits. 4. Contains biographies of all 
 the chief and associate Justices. 
 
 CURTIS, WILLIAM ELEROY. " The Seven Chief Justices of the 
 United States." In Chant auquan, Vol. 25, July, 1897, pp. 
 339-347. John Jay, Oliver Ellsworth, John Marshall, 
 Roger B. Taney, Salmon P. Chase, Morrison R. Waite, and 
 Melville W. Fuller. 
 
 CASSODY, JOHN B. John Scott and John Marshall. In Ameri 
 can Law Review, Vol. 33, Jan.-Feb., 1899, pp. 1-27. 
 
 CENTENNIAL anniversary of the elevation of John Marshall to 
 the office of Chief Justice of the Supreme Court of the 
 United States of America. (The) . . . February 4th, 
 1901. Celebration in the City of Philadelphia under the 
 auspices of the Law Association of Philadelphia, (etc.) 
 Philadelphia: G. H. Buchanan and Co., 1901. 68 pp. 
 Portrait. 8. Oration by J. T. Mitchell. 
 
 CHIEF JUSTICE MARSHALL. 
 
 In American Quarterly Review, Vol. 18, Dec., 1835, pp. 473- 
 
 489. 
 
 In Green Bag, Vol. 3, Dec., 1891, pp. 541-542. 
 In National Quarterly Review, Vol. 33, Sept., 1876, pp. 229- 
 
 242. 
 
 In New York Review, Vol. 3, Oct., 1838, pp. 328-361. 
 In North American Review, Vol. 42, Jan., 1836, pp. 217-241. 
 A review of the life of John Marshall, by Joseph Story. 
 
 CHIEF JUSTICE MARSHALL S Public Life and Service. In North 
 American Revnew, Vol. 26, Jan., 1828, pp. 1-40. 
 
 COOKE, JOHN ESTEN. Early Days of John Marshall. In His 
 torical Magazine, Vol. 3, June, 1859, pp. 165-169. 
 
 CRAIGHILL, ROBERT T. John Marshall. In his " The Virginia 
 Peerage/ Vol. I, pp. 231-284. Richmond, 1880. 8. 
 
 DICKINSON, MARQUIS FAYETTE, JR. John Marshall. The 
 tribute of Massachusetts; being the addresses delivered at 
 Boston and Cambridge, February 4th, 1901, in commemora 
 tion of the one hundredth anniversary of his elevation to 
 the bench as Chief Justice of the United States. Boston : 
 Little, Brown and Company, 1901. xvii, 120 pp. Por 
 traits. 8. 
 
 DILLON, JOHN FORREST, ed. John Marshall; life, character, and 
 judicial services as portrayed in the centenary and memorial 
 addresses and proceedings throughout the United States on 
 Marshall day, 1901, and in the classic orations of Binney, 
 Story, Phelps, Waite, and Rawle; compiled and edited with 
 an introduction by John F. Dillon. Chicago : Callaghan and 
 Co., 1903, 3 vols. Plates, portraits, facsimiles. 8. 
 
352 BIBLIOGRAPHY 
 
 DODD, WILLIAM E. Chief Justice Marshall and Virginia, 1813- 
 1821. In American Historical Review, Vol. 12, July, 1907, 
 pp. 776-787. 
 
 FINCH, FRANCIS MILES. Chief Justice John Marshall. Mar 
 shall Day Address, Cornell University, Feb. 4th, 1901. 
 Ithaca, N. Y., 1901. up. Portrait. 8. Reprinted from 
 Cornell Alumni News. 
 
 FLANDERS, HENRY. The Life of John Marshall. Philadelphia: 
 T. & J. W. Johnson & Co., 1905. x, 278 pp. Portrait. 
 8. Originally issued in the Author s " Lives and Times of 
 the Chief Justices of the United States." 
 
 FULLER, MELVILLE W. Chief Justice Marshall. In the Dial 
 (Chicago), Vol. 6, May, 1885, pp. 10-12. Reprinted in the 
 Dial, Vol. 9, Oct., 1888, pp. 128-130. 
 
 GRAY, HORACE. An address on the life, character and influence 
 of Chief Justice Marshall, delivered at Richmond on the 
 fourth day of February, 1901, at the request of the State 
 Bar Association of Virginia and the Bar Association of the 
 city of Richmond. Washington, D. C. : Pearson print, 
 office, 1901. (2), 49 pp. 8. Authorities consulted other 
 than Supreme Court decisions: pp. 45-47.. 
 
 GREAT American Judge, A (John Marshall). In Spectator, Vol. 
 86; Feb. 9, 1901, pp. 198-199. 
 
 GRISWOLD, RUFUS WILMOT. John Marshall. In his " The Prose 
 Writers of America," pp. 85-88. Philadelphia, 1847. 8. 
 
 GRISWOLD, RUFUS WILMOT. Marshall. In " Homes of Ameri 
 can Statesmen," pp. 263-274. New York, 1858. 8. 
 
 HARDY, SALLIE E. MARSHALL. Chief Justice Marshall. In 
 Magazine of American History, Vol. 12, July, 1884, pp. 
 62-71. 
 
 HARDY, SALLIE E. MARSHALL. John Marshall, Third Chief Jus 
 tice of the United States, as son, brother, husband, and 
 friend. In Green Bag, Vol. 8, Dec., 1896, pp. 479-492. 
 
 HARDY, SALLIE E. MARSHALL. The Will of a Great Lawyer. 
 How Chief Justice Marshall Devised His Estate. In Green 
 Bag, Vol. 8, Jan., 1896, pp. 4-6. 
 
 HOUGHTON, WALTER R. John Marshall. In his " Kings of 
 Fortune," pp. 437-456. Chicago, 1885. 8 - 
 
 JOHN MARSHALL. In Albany Law Journal, Vol. 13, June 24, 
 1876, pp. 442-445. Same in Washington Lazv Reporter, 
 Vol. 3, July i, 1876, pp. 156-157 ; July 8, 1876, pp. 163-164. 
 
 JOHN MARSHALL. In American Law Record, Vol. 5, July, 1876, 
 
 PP- 55-59- 
 JOHN MARSHALL. I. Soldier, Lawyer, Statesman, and Man. 
 
BIBLIOGRAPHY 353 
 
 II. Judge and Jurist. In Green Bag, Vol. 13, April, 1901, 
 
 PP. 157-195; Ma y> I9 01 * PP- 213-267. 
 
 JOHN MARSHALL Day ; centennial proceedings of the Chicago 
 Bar, Feb. 4, 1901 ; including proceedings before the Supreme 
 Court of Illinois. (Chicago: The Associated committees of 
 Illinois, from the press of Hollister Bros., 1901.) 794 pp. 
 Portrait. Facsimile. 4. 
 
 JONES, FRANCIS R. John Marshall. In Green Bag, Vol. 13, 
 Feb., 1901, pp. 53-64. 
 
 LEHMANN, FREDERICK W. John Marshall. An address before 
 the Bar Association of Des Moines, Iowa. (Des Moines? 
 1900?) 46 pp. 8. 
 
 LIBBY, CHARLES FREEMAN. John Marshall ; an address deliv 
 ered at ... (Bowdoin) college on Feb. 4th, 1901, the cen 
 tenary of the installation of John Marshall as Chief Justice 
 of the United States. Brunswick, Maine. By the college, 
 1901. 37 pp. 8. 
 
 LIFE OF JUDGE MARSHALL. In Port Folio, Vol. 13, Jan., 1815, 
 pp. 1-6. 
 
 LODGE, HENRY CABOT. An address upon Chief Justice Marshall. 
 Delivered at the Auditorium in Chicago on the fourth day 
 of Feb., 1901, at the request of the Bar Associations of the 
 State of Illinois and the city of Chicago. Washington : 
 Pearson printing office, 1901. 30 pp. 8. 
 
 LODGE, HENRY CABOT. John Marshall, Statesman. In North 
 American Reiiew, Vol. 172, Feb., 1901, pp. 191-204. 
 
 LOSSJNG, J. BENSON. John Marshall. In his " Eminent Ameri 
 cans," pp. 216-218. New York, 1886. 12. 
 
 McCABE, JAMES D. John Marshall. In his " Great Fortunes," 
 pp. 417-434. Cincinnati and Chicago, 1871. 8 
 
 McCLAiN, EMLIN. Chief Justice Marshall as a Constructive 
 Statesman. Iowa City, la.: The State Historical Society, 
 (1903?) 42 pp. 4. Cover-title. Reprinted from the 
 October, 1903, number of the Iowa Journal of History and 
 Politics. " The substance of this paper was delivered as an 
 address before The Grant Club, Des Moines, on Feb. 19, 
 1903. In the form in which it is here published it was read 
 in full before the Political Science Club, Iowa City, on March 
 9, 1903." 
 
 MACVEAGH, WAYNE. John Marshall. An address delivered 
 upon the invitation of the American Bar Association and a 
 joint committee of Congress, in the Hall of the House of 
 Representatives, Feb. 4, 1901. Washington, D. C. : Judd 
 and Detweiler, printers, 1901, 36 pp. 4. 
 
354 BIBLIOGRAPHY 
 
 MAGRUDER, ALLAN BOWIE. John Marshall. Boston and New 
 York: Houghton, Mifflin and Company, (1885) viii. 290 
 pp. 12. (American Statesmen.) 
 
 MAGRUDER, ALLAN BOWIE. John Marshall. (Large paper edi 
 tion.) Bostom and New York: Houghton, Mifflin & Co., 
 1898. viii (6), 296 pp. Plates. Portraits. Facsimile. 
 8. (American Statesmen, V. 10.) 
 
 MARSHALL, MARIA NEWTON. The Marshall Memorial Tablet. 
 In Green Bag, Vol. 14, Aug., 1902, pp. 372-373. 
 
 MEANS, D. MAC G. Chief Justice Marshall. In The Nation, 
 Vol. 72, Feb., 1901, pp. 104-105. 
 
 MOORE, FRANK. John Marshall. In his " American Eloquence," 
 Vol. 2, pp. 1-32. New York, 1862. 4. , 
 
 MOORE, JOHN BASSETT. John Marshall. Boston: Ginn & Co., 
 1901. (2), 393-411 pp. 8. Address delivered before the 
 Delaware Bar, at Wilmington, Feb. 4, 1901. Reprinted from 
 Political Science Quarterly, Vol. XVI, No. 3. 
 
 MOSES, ADOLPH. How to celebrate John Marshall day, Feb. 4, 
 1901 ; pub. by direction of the executive committee of the 
 Illinois Bar Association. (Chicago) : Illinois Bar Assoc., 
 (1900). 16 pp. 8. 
 
 MOSES, ADOLPH. " John Marshall Day." Series of letters and 
 endorsements in answer to circular advocating the celebra 
 tion of "John Marshall Day," Feb. 4, 1901. (n. p.) 1899. 
 
 34 pp. 
 OLNEY, RICHARD. Chief Justice Marshall. In the Outlook, 
 
 Vol. 67, Mar. 9, 1901. pp. 573-576. 
 OLNEY, WARREN. Chief Justice Marshall. In American Law 
 
 Review, Vol. 34, July- Aug., 1900, pp. 550-561. 
 P. T. John Marshall. In American Law Review, Vol. i, Apr., 
 
 1867, pp. 432-442. 
 
 PAULDING, WILLIAM I. A contribution to history (relating to 
 John Marshall). In Lippincotfs Magazine, Vol. 2, Dec., 
 
 1868, pp. 623-626. 
 
 PERRY, BENJAMIN F. John Marshall. In his " Biographical 
 Sketches of Eminent American Statesmen," pp. 467-477. 
 Philadelphia, 1887. 8. 
 
 PATTERSON, T. ELLIOTT. History of Three Chief Justices of 
 the United States Supreme Court. In Law Students 
 Helper, Vol. 5. Sept., 1897, pp. 321-323; Oct., 1897, PP- 
 353-3555 Nov., 1897, pp. 383-385. Contents. I. John 
 Marshall. II. Roger Brooke Taney. III. Salmon Port 
 land Chase. 
 
 PHELPS, EDWARD J. Annual address. (John Marshall.) In 
 
BIBLIOGRAPHY 355 
 
 American Bar Association. Transactions, Vol. 2, pp. 173- 
 192. Philadelphia, 1879. 8. 
 
 PHELPS, EDWARD J. Chief Justice Marshall and the Constitu 
 tional Law of His Time. An address before the American 
 Bar Association at Saratoga, August 21, 1879. Philadel 
 phia: E. C. Barkley & Son, 1879. 22 pp. 8. Also in his 
 " Orations and Essays," edited by J. G. McCullough, pp. 
 27-53. New York, 1901. 8. 
 
 PROCTOR, L. B. Jefferson s Contempt of Chief Justice Mar 
 shall s Opinions. In Albany Law Journal, Vol. 44, Oct. 24, 
 1891, pp. 342-343- 
 
 RAWLE, WILLIAM HENRY. Unveiling of the Statue of Chief 
 Justice Marshall, at Washington, May 10, 1884. Oration. 
 Philadelphia: Allen, Lane & Scott s printing house, 1884. 
 
 3i PP- 4. 
 
 RHODE ISLAND BAR ASSOCIATION. John Marshall Day : Cele 
 bration by the Rhode Island Bar Association and Brown 
 University, Feb. 4, 1901 : address by Le Baron Bradford 
 Colt; introductory address by Francis Colwell. (Provi 
 dence: Rhode Island Printing Co., 1901.) 53 pp. Por 
 trait. 8. 
 
 ROANE, SPENCER. Roane on the National Constitution. Re 
 prints from the Richmond Chronicle and Richmond En 
 quirer. In the John P. Branch " Historical Papers," Vol. 
 2, June, 1905, pp. 47-122. Richmond, 1905, 8. " No 
 apology is offered for devoting so much space in the Branch 
 papers this year to the life and work of Judge Spencer 
 Roane. Henry Adams and the other historians of the 
 period have but little to say of Roane or of the protest 
 which he constantly made against Chief Justice Marshall, 
 and the files of the Richmond Enquirer, which gave so much 
 of the history of Virginia at the time, are easily accessible. 
 John Marshall and the Supreme Court of the United States, 
 as will "be seen, were subjects of lively attack." (Introduc 
 tion.) 
 
 RUSSELL, ALFRED. John Marshall. In American Law Review, 
 Vol. 35, Jan.-Feb., 1901. pp. 1-7. 
 
 STORY, JOSEPH. An address by Mr. Justice Story on Chief Jus 
 tice Marshall. Delivered in 1852 (1835) at request of 
 the Suffolk (Mass.) Bar. Rochester, N. Y. : The Law 
 yers Cooperative Publishing Co., 1900. 60 pp. Por 
 traits. 8. 
 
 SCOTT, HENRY W. John Marshall. In his " Distinguished 
 American Lawyers," pp. 537-544. New York, 1891. 8. 
 
356 BIBLIOGRAPHY 
 
 STORY, JOSEPH. Life of Chief Justice Marshall. In American 
 
 Law Magazine, Vol. I, July, 1843, PP- 2 43~3 O1 - 
 STORY, JOSEPH. Mr. Justice Story s Eulogy of Chief Justice 
 
 Marshall. In American Jurist, Vol. 14, Oct., pp. 448-454. 
 STORY, JOSEPH. John Marshall, LL.D., Chief Justice of the 
 
 United States. In Current Comment, Vol. I, June 15, 1889, 
 
 pp. 213-224; July 15, 1889, pp. 253-261. 
 TERHUNE, MARY VIRGINIA H. The Marshall House. In her 
 
 " Some Colonial Homesteads and Their Stories," pp. 84-103. 
 
 New York, 1897. 8. 
 THAYER, JAMES BRADLEY. John Marshall; an address delivered 
 
 in Sander s Theatre, Cambridge, before the Law School of 
 
 Harvard University and the Bar Association of the City of 
 
 Boston on Feb. 4, 1901. Cambridge: J. Wilson & Son, 
 
 1901. 48 pp. 4. 
 THAYER, JAMES BRADLEY. John Marshall. In Atlantic 
 
 Monthly, Vol. 87, Mar., 1901, pp. 328-341. 
 THAYER, JAMES BRADLEY. John Marshall. Boston & New 
 
 York: Houghton, Mifflin and Co., 1901. (8), 157, (i) pp. 
 
 Portrait. 12. (Riverside Biographical Series, No. 7.) 
 \THOMAS JEFFERSON S Opinion of John Marshall and His Court. 
 
 In American Law Review, Vol. 35, Jan.-Feb., 1901, pp. 
 
 63-77. 
 
 UNITED STATES. Congress. Exercises at the ceremony of the 
 unveiling of the statue of John Marshall, Chief Justice of 
 the United States, in front of the Capitol, Washington, May 
 10, 1884. With the address of Chief Justice Waite and 
 the Oration of W. H. Rawle. Washington: Government 
 printing office, 1884. 92 pp. Frontispiece. 4. 
 
 WAITE, CATHERINE V. John Marshall. In Chicago Law Times, 
 Vol. i, Apr., 1887, pp. 109-121. 
 
 WAITE, MORRISON REMICK. The Orations of Chief Justice 
 Waite and of William Henry Rawle on the Occasion of the 
 Unveiling of the Bronze Statue of Chief Justice Marshall 
 at Washington, May 10, 1884. Chicago: T. H. Flood & 
 Co., 1900. 58 pp. Portrait. 8. 
 
 WILLIAMS, GEORGE HENRY. Address on John Marshall, deliv 
 ered by Hon. Geo. H. Williams before the Legislative As 
 sembly of the State of Oregon, Feb. 4, 1901. Salem, Ore.: 
 W. H. Leeds, state printer, 1901. 19 pp. 8. 
 
 WILSON, JOHN R. John Marshall. In American Law Review, 
 
 Vol. 22, Sept.-Oct., 1888, pp. 706-730. 
 
 V WYNNE, JAMES. Chief Justice Marshall. In his " Lives of 
 Eminent Literary and Scientific Men of America," pp. 231- 
 300. New York, 1850. 12. 
 
BIBLIOGRAPHY 357 
 
 SUPPLEMENTAL 
 
 FLANDERS, HENRY. The Lives and Times of the Chief Jus 
 tices of the United States. New York: James Cockcroft 
 & Co., 1875. 2 Vol. Frontispiece. 8. Chief Justice 
 Marshall (Life) Vol. 2, pp. 279-550. 
 
 FRENCH, BENJAMIN FRANKLIN. Biographia Americana. New 
 York: Published by D. Mallory, 1825. vii. 356 pp. 8. 
 John Marshall. Page 228. 
 
 JONES, ABNER D. The American Portrait Gallery. New York: 
 J. M. Emerson and Co. 1855. Portraits. 8. Chief 
 Justice Marshall, pp. 97-98. 
 
 BEARD, CHARLES A. The Supreme Court and the Constitution. 
 New York: The Macmillan Company, 127 pp. Based on an 
 article published in the Political Science Quarterly, March, 
 1912. 
 
 CASSODY, JOHN B. John Scott and John Marshall, or Chief 
 Justice Marshall contrasted with Lord High Chancellor 
 Eldon. In Illinois State Bar Association Proceedings, 1900. 
 Springfield: 1900, pt. 2. pp. 69-100. Also printed in 
 American Law Review, Jan. -Feb., 1899, Vol. 33, pp. 1-27. 
 
 CENTENNIAL of Chief Justice Marshall. In United States Re 
 porter, New York, 1901. Vol. 180. Appendix, pp. 643- 
 716. " Supreme Court decisions referred to," p. 713. 
 " Authorities consulted other than Supreme Court Deci 
 sions," pp. 713-715. 
 
 MILLIKEN, JOHN D. The early days of Marshall. In Bar As 
 sociation of State of Kansas, 1901. Clay Centre, 1901, pp. 
 86-99. 
 
 GROSSCUP, PETER S. (Judge). On John Marshall. In Vol. 19, 
 National Corp. Rep., p. 544. 
 
 STORY S Tribute to Chief Justice Marshall Before His Death. 
 In Vol. 19, Nat. Corp. Rep., p. 471. 
 
 JOHN MARSHALL day information. Running numbers of the 
 National Corporation Reporter. Commencing 18, Nat. 
 Corp. Rep., p. 713 et seq. 
 
 CORRESPONDENCE on the subject of indorsing the celebrations of 
 " John Marshall Day " throughout the United States. In 
 Vol. 19, National Corporation Reporter, pp. 7, 716, 761, 
 836, 876, and 908. 
 
 WYTHE, GEORGE. Law Teacher of Chief Justice Marshall. In 
 Vol. 20, National Corporation Reporter, p. 80. 
 
 CHESLEY, J. HARRY. Marshall s Military Honors in War and 
 Peace. A short but interesting article. In Vol. 20, Na 
 tional Corporation Reporter, p. 116. 
 
358 BIBLIOGRAPHY 
 
 CHESLEY, J. HARRY. The Ancestry of Chief Justice Marshall. 
 In Vol. 20, National Corporation Reporter, p. 550. A short 
 article. 
 BIOGRAPHICAL Notice of John Marshall. In Vol. 30, Federal 
 
 Cases, pp. 1385-1386. 
 . CHARACTERISTICS of John Marshall, by Randall M. Ewing. In 
 
 Vol. 3, Tennessee Bar Association Reports, pp. 135. 
 MARTINEAU, HARRIET. " Retrospect of Western Travel." 1838. 
 
 A good description of Marshall and his oratory. 
 MEADE, WILLIAM. "Old Churches, Ministers, and Families of 
 
 Virginia." 1872. Vol. 2, pp. 216 et seq. 
 MURRAY, CHARLES A. " Travels in North America." 1839. 
 
 Vol. i, p. 158. 
 
 MYERS, GUSTAVUS. " History of the Supreme Court of the 
 United States." Chicago: C. H. Kerr and Company. 1912. 
 823 pp. 
 
 SWAN, CHARLES H. Quelques decisions recentes de la Cour Su 
 preme des fitats-Unis en motiere de travail. Bruxelles, 
 Office de la Revue (1909) 23 pp. Extrait de la Revue 
 Economique Internationale, Novembre, 1909. 
 WILSON, HENRY H. John Marshall and the Federal Constitu 
 tion. In Nebraska State Bar Association Proceedings, 
 1906-1909. Omaha: 1909. pp. 213-230. 
 
 MULLER, F. W. Die Rechtsprechung der Supreme Court of the 
 United States. Betreffend Art. i Absatz 10 der Verfassung 
 der Vereinigten Staaten. Zartschrift fur Volkerrecht und 
 Bundesstaaterrecht. 1908. Vol. 3, pp. 25-41. Literatur, 
 p. 41. 
 
 HITCHCOCK, HENRY. Constitutional Development in the United 
 States as Influenced by Chief Justice Marshall. Pp. 53-121. 
 Constitutional History. Addresses delivered at the Univer 
 sity of Michigan. 1889. 
 ARTICLES that are more or less valuable and interesting may be 
 
 found in the following Legal Magazines: 
 American Jurist, Vol. 22, p. 247. 
 Virginia Law Register, Vol. 15, p. 807. 
 
 Current Comment, Vol. i, pp, 213, 253. A sketch with por 
 trait. (J. Story.) 
 
 Law Student s Helper, Vol. 5, p. 321. Sketch with portrait. 
 Chicago Law Times, Vol. i, p. 109. 
 Chicago Law Times, Vol. 86, p. 175. 
 Minnesota Law Journal, Vol. 4, p. 104. 
 Chicago Legal News, Vol. 28, p. 380. 
 American Law Register, Vol. (N. S.) 33, p. 426. 
 
BIBLIOGRAPHY 359 
 
 Albany Law Journal, Vol. 2, p. 126. Address by Professor 
 
 Parsons. 
 PERIODICALS mentioned below have articles on Marshall, most of 
 
 which give some information that is valuable. 
 American Quarterly Review, Vol. 18, p. 473. December, 
 
 1835- 
 
 World s Work, Vol. i, p. 394. 
 
 National Quarterly Review, Vol. 33, p. 229. Semtember, 1876. 
 
 New York Review, Vol. 3, p. 361, October, 1838. 
 
 North American Review, Vol. 26, p. i. 
 
 Historical Magazine, Vol. 3, p. 165. % 
 
 American Historical Review, Vol. 12, p. 776. 
 
 Spectator, Vol. 86, p. 198. 
 
 Lippincott s, Vol. 2, p. 623. 
 
 Political Science Quarterly, Vol. 16, No. 3. 
 --Atlantic Monthly, Vol. 87, p. 328. 
 
 Edinburgh Review, May, 1820, p. 113. 
 
 Christian Review, Vol. i, p. 83. 
 
 Edinburgh Review, Vol. for October, 1808. 
 
 New England Magazine, new series, Vol. 20, p. 527. Old 
 Series, Vol. 9, p. 151. 
 
 North American Review, Vol. i, p. 331; Vol. 5, p. 115; Vol. 
 10, p. 89. Vol. 13, p. 79; Vol. 17, pp. 148 and 167; Vol. 
 18, p. 90; Vol. 19, p. 277 and 287 ; Vol. 20, pp. 444 and 453 ; 
 Vol. 21, p. 128; Vol. 22, p. 259. 
 
 Reformed Quarterly, Vol. 34, p. 428. 
 
 Pearson s Magazine (N. Y.), Chief Justice John Marshall: 
 the father of American Judicial Despotism. By A. L. Ben 
 son. Vol. 26, pp. 320-30. S. ii. 
 
 American Almanac. 1836. (Boston.) pp. 305-307. Obit 
 uary. 
 
 Sewanee Review. John Marshall, Southern Federalist. Vol. 
 9, p. 129. 
 
 Longman s Magazine. Voyage of John Marshall. Vol. 37, 
 p. 147. 
 
 Book Buyer. John Marshall s Work as Diplomat and Lit 
 terateur. By L. Swift. Vol. 20, pp. 364-366. June, 1900. 
 REPORTS of cases decided by the Hon. John Marshall, in the Cir 
 cuit Court of the United States for the District of Virginia 
 and North Carolina, from 1802 to 1833, inclusive, edited by 
 John W. Brockenbrough (with a memoir by J. Hopkinson). 
 Philadelphia: 1837. 2v. 8. (I. McLean Reports., 555.) 
 SPEECHES in the Constitutional Convention of Virginia. 1789. 
 In Elliot s Debates, Vol. 3, pp. 229, 419, 551. 
 
360 BIBLIOGRAPHY 
 
 WRITINGS of John Marshall, late Chief Justice, upon the Federal 
 Constitution. Boston: 1839, p. 730. 8. Republished. 
 Washington, 1890, p. 725. 
 
 BENTON, THOMAS H. Death of Chief Justice Marshall. In 
 " Thirty Years View." 1854. Vol. I, p. 681. 
 
 HOPKINSON, JOHN. " Memoir of John Marshall." In J. W. 
 Brockenbrough s Reports of Cases Decided by John Mar 
 shall. (1837.) 
 
 KENNEDY, WILLIAM. " Life of Wirt." Volume I, pp. 161-206. 
 
 POTTER, CLARKSON N. Marshall and Taney. American Bar 
 Association Report. 1881. p. 175. 
 
 VAN SANTVOORD, GEORGE. John Marshall. " Sketches of the 
 Lives of the Chief Justices." 1882. pp. 337-522. 
 
 OBITUARY PROCEEDINGS. John Marshall, i McLean Reports. 
 555, 30 Fed. Cas. 1323. 
 
 OBITUARY PROCEEDINGS in United States Supreme Court. 10 
 Peters Reports VII. 
 
 BIOGRAPHICAL NOTICE. 30 Federal Cases, 1385. 
 
 SENATE REPORT. 544. i Sess., 48 Congress. 
 
 WIRT, WILLIAM. " The British Spy." Letter, 99. 178-181. / 
 
 WRITINGS OF JOHN MARSHALL 
 
 The Constitutional Decisions of John Marshall ; edited, with an 
 introductory essay, by Joseph P. Cotton, Jr. New York, 
 G. P. Putnam s Sons, 1905. 2 vols. 
 
 John Marshall, complete constitutional decisions, edited, with 
 annotations historical, critical, and legal, by John M. Dillon. 
 Chicago: Callaghan and Co. 1903. xi, (i), 799 pp. Por 
 trait. 2 fold. facs. 8. 
 
 A history of the colonies planted by the English on the continent 
 of North America, from their settlement, to the commence 
 ment of that war which terminated in their independence. 
 Philadelphia: A. Small, 1824. xv, (9) -486 pp. 8. 
 Originally published as an introduction to the author s " Life 
 of George Washington." 
 
 A letter of Marshall to Jefferson, 1783, by R. G. Thwaites. 
 (New York? 1905) pp. 815-817. 4. Cover-title. Re 
 printed from the American Historical Review, Vol. X, No. 
 4, 1905. 
 
 Letters of John Marshall, Secretary of State, Aug. 23, 1800; 
 Sept. 20, 1800; Dec. 2, 4, 1800. In American State Papers. 
 Foreign Relations, Vol. 2, pp. 386-387, 388-389, 486-490. 
 Washington, 1832. F. 
 
 The Life of George Washington. Compiled under the inspection 
 
BIBLIOGRAPHY 361 
 
 of the Hon. Bushrod Washington, from original papers. 
 
 Philadelphia: C. P. Wayne, 1804-1807. 5 vols. 8. 
 
 Atlas. 4. Same. 2d ed., rev. Philadelphia: Crissy & 
 
 Markly, 1833. 2 vols. 8. Atlas. 8. 
 Life of George Washington. Written for the use of schools. 
 
 Philadelphia, 1838. 12. 
 Het leven van George Washington, uit deszelfs oorspronglijke 
 
 papieren onder toezigt van Bushrod Washington. Uit het 
 
 Engelsch door J. Werninck. Haarlem: A. Loosjes, 1805- 
 
 1809. 10 vols. in 6. Plates. Maps. 8. 
 
 SUPPLEMENTAL 
 
 MASSACHUSETTS Historical Society, Proceedings. Letters from 
 John Marshall to Timothy Pickering and Mr. Justice Story. 
 2d Series, Vol. XIV, pp. 321-360. Boston: 1900, 1901. 8 
 vols., pp. xx, 502. 
 
 SLAUGHTER, WM. B. " Reminiscences of Distinguished Men," 
 with an autobiography. Madison, Wisconsin. Published 
 by the author. Chapter III, John Marshall, pp. 102-124. 
 Godfrey & Crandall, Printers and Publishers, 1878. 
 
 OPINION of the Supreme Court of the United States at January 
 term, 1832, delivered by Mr. Chief Justice Marshall in the 
 case of Samuel A. Worcester v. The State of Georgia. 
 Washington : Printed by Gales and Seaton, 1832. 
 
 CALENDAR of Virginia State Papers and other manuscripts. 
 Some of Marshall s letters, etc., pp. 12, 115-116, 399. Vol. 
 IX. Richmond, Va. : 1890. Jan. i, 1799, to Dec. 31, 1807. 
 Arranged and edited and printed under authority of H. W. 
 Flourney, Secretary of the Commonwealth and State Libra 
 rian. 
 
 SAME. Vol. 7, pp. 101-102, 120, 148, 228-229, 234-235, 347, 347- 
 
 348, 309, 383-3 8 4, 403-404, 446, 309, 45 1- 
 
 SAME. Vol. 6, pp. 546, 547, 581, 600-601. 
 
 MARSHALL, JOHN. Message from the President of the United 
 States, transmitting a report from the Secretary of State 
 (John Marshall), with sundry documents relative to the 
 subject of the resolution of the 24th inst. 27 February, 
 1801. 12 pp. 8. Same. In American State Papers, For 
 eign Relations, Vol. 2, pp. 345-347. Washington, 1832. F. 
 Relating to the treaty of amity with Great Britain. 
 
 MARSHALL, JOHN. The writings of John Marshall upon the 
 Federal Constitution. Boston: J. Munroe & Co., 1839. xix, 
 728 pp. 8. A collection of Marshall s Constitutional 
 opinions. 
 
362 BIBLIOGRAPHY 
 
 CONGRESSIONAL DOCUMENTS RELATING TO MAR 
 SHALL IN FRANCE, AS ENVOY EXTRAORDINARY 
 AND MINISTER PLENIPOTENTIARY, 1798, IN 
 CLUDING THE X. Y. Z. CORRESPONDENCE 
 
 INSTRUCTIONS to Charles Cotesworth Pinckney, John Marshall, 
 and Elbridge Gerry, envoys extraordinary and ministers 
 plenipotentiary to the French Republic, referred to in the 
 message of the President of the United States of the third 
 instant. Philadelphia: Printed by Way and GrofT, 1798. 
 20 pp. 12. 
 
 INSTRUCTIONS to the envoys extraordinary and ministers pleni 
 potentiary from the United States of America to the French 
 Republic, their letters of credence and full powers, and the 
 dispatches received from them relative to their mission. 
 Published by the Secretary of State, in conformity with the 
 resolution of Congress of the 22d June, 1798. Philadelphia: 
 Printed by W. Ross (1798). 131 pp. 8 b . 
 
 FRANCE. Message from the President, communicated to Con 
 gress, March 5, 1798. In American State Papers, Foreign 
 Relations, Vol. 2, pp. 150-151. Washington, 1832. F. 
 Transmitting communications from envoys extraordinary. 
 
 FRANCE. Message from the President, communicated to Con 
 gress, March 19, 1798. In American State Papers, Foreign 
 Relations, Vol. 2, p. 152. Washington, 1832. F. 
 
 MESSAGE of the President of the United States to both houses 
 of Congress, April 3d, 1798. (Philadelphia, 1798.) 71 pp. 
 8. Same. In American State Papers, Foreign Relations, 
 Vol. 2, pp. 153-168. Washington, 1832. F. ^ 
 
 MESSAGE of the President of the United States to both houses 
 of Congress, May 4th, 1798. 72 pp. 8. Communications 
 from envoys extraordinary. Same. In American State 
 Papers, Foreign Relations, Vol. 2, pp. 169-182. Washing 
 ton, 1832. F. 
 
 MESSAGE from the President of the United States, accompany 
 ing the communications from the Envoys extraordinary to 
 the French Republic, received since the fourth of May last. 
 5th June, 1798. Philadelphia: Printed by Way & Groff, 
 (1798). 17 pp. I2 . 
 
 MESSAGE from the President of the United States, accompany 
 ing a communication, No. 8, from the Envoys extraordinary 
 to the French Republic. Received at the office of the Secre 
 tary of State on Thursday the I4th instant. i8th June, 
 1798. Philadelphia: Printed by Joseph Gales, (1798), 
 72 pp. 8. 
 
BIBLIOGRAPHY 363 
 
 MESSAGE from the President of the United States, accompany 
 ing a report of the Secretary of State, containing observa 
 tions on some of the documents, communicated by the 
 President, on the eighteenth instant. 2ist January, 1799. 
 Philadelphia: Printed by John Ward Fenno, 1798. (2), 
 45, (92) pp. 8. 
 
INDEX 
 
INDEX 
 
 Adams, John Q., 12, 314; made Marshall 
 Chief Justice, 16; diary, 349. 
 
 Adams, John, letter to, 57. 
 
 Autobiography of Marshall, 197. 
 
 v Ambassadors, cases affecting, 303. 
 
 Attainder, bills of, 295. 
 
 Annul, power of Court to annul laws, 
 305; power denied, 305; power main 
 tained, 306. 
 
 Amendment to Constitution, 307; scope 
 of Eleventh, 311. 
 
 Adoption of first ten amendments, 308. 
 
 Address, John Bassett Moore, 348. 
 
 Austin v. Tenn, doctrine of original 
 packages, 291. 
 
 Ambassadors, cases affecting, 303. 
 
 Ambler, John, letter to, 183. 
 
 Credit, bills of, 296. 
 Carter, Charles, letter to, 47. 
 Curley, Rev. R. R., letter to, 45. 
 Chase, Dudley, letter to, 80. 
 
 Direct taxes, 283. 
 
 Dunning, Professor Wm. A. (preface). 
 
 Desertion, punishment, 229. 
 
 Definition of contract, 299; of commerce 
 
 decision, 347. 
 
 Dartmouth College v. Woodward, 299. 
 Delegation of powers of President, 300. 
 Decision in Gibbon v. Ogden, 340. 
 Death of Marshall, 348. 
 Decisions, kernel of Marshall s, 280. 
 
 Bequest to daughter, 200. 
 
 Beard, Prof. Charles A. (preface). 
 
 Bryce, Professor, American institutions, 
 
 1 1. 
 
 Bayard, Mr., 226. 
 Bailey, John, letter to, 101. 
 
 Bonds, tax on income, 283. T- n , , 
 
 Bank,, taxing United .State s, 284; power ench Jacobm Clubs .14. 
 
 Eulogy, on wife, 201; on Washington, 
 
 278. 
 
 Erb, Mr., librarian (preface). 
 Extent of judiciary powers, 302. 
 Eleventh Amendment, scope, 311. 
 Everett, Edward, letter to, 97. 
 
 of Congress to charter, 289. 
 
 Brown, Mr. Justice, on original pack 
 ages, 291. 
 
 Bills of attainder, 295; of rights, 310; 
 of credit, 295; definition of, 296. 
 
 Borrowing money, power, 289. 
 
 Burr trial, Marshall issues subpoena for 
 President Jefferson, 301. 
 
 Bibliography, 350. 
 
 Connecticut, General Assembly, appoints 
 agents, 213; offered to make cession 
 of Western Territory, 217; grants 
 five hundred thousand acres, 218; 
 petition for new colony, 223. 
 
 Constitution, extent of judicial power 
 under, 238; amendment to, 307; in 
 tention of framers, 310. 
 
 Congress, power to charter banks, 284, 
 289; implied powers of, 313. 
 
 Contract, obligation of, 297; definition 
 of, 299; obligation defined, 300. 
 
 Case, what is a, 302; affecting Ambas 
 sadors, 303; passenger, 341. 
 
 Commerce, more than traffic, 340; powers 
 defined, 342 ; navigation, 344. 
 
 Corporations, origin of, 290. 
 
 Clay, Henry, letters to, 41, 42, 43. 
 
 Free Masonry, Opinion by Marshall, 97. 
 Fitch, Lieut. -Governor, letter, 222. 
 French Republic, first minister, 228. 
 Fletcher v. Peck, 295. 
 Framers of Constitution, intention of, 
 310. 
 
 Genet, 14, 228. 
 Gallatin, Mr., 227. 
 
 Government, general objects, 257; of ter 
 ritories, 307. 
 
 Goodnow, Prof. Frank J. (preface). 
 Guthrie, Prof. Wm. D. (preface). 
 Gibbons v. Ogden, decision, 340. 
 Gallatin, Albert, letter to, 38. 
 
 H 
 
 Henry, Patrick, gloomy predictions, 1 1 ; 
 led attack on Constitution, 13; op 
 posed by Marshall, 253. 
 
 Habeas Corpus, the privilege of the writ 
 shall not be suspended, 294. 
 
 Hamilton, Alexander, letters to, 90, 92, 
 93- 
 
 367 
 
 Isle of Wight, 21. 
 
368 
 
 INDEX 
 
 Independence of Judiciary, 281-2; im 
 plied powers of, 282. 
 
 Inspection laws, state, 292. 
 
 Implied powers of Congress, 313. 
 
 Implied powers, nothing in the Constitu 
 tion which excludes the exercise, 282. 
 
 Iredell, James, letter to, 44. 
 
 Jefferson, Thomas, relation to Marshall, 
 
 16; Marshall issues subpoena, 301; 
 
 enraged at decision, 316; letters to, 
 
 J6, 181, 182. 
 John Fae (preface). 
 Jurisdiction, at sea, 229; in controversies 
 
 between a state and a foreign state, 
 
 Judicial power, extension to all cases of 
 admiralty and maritime jurisdiction, 
 240, 302. 
 
 Jurors, right of challenging, 274. 
 
 Judiciary, independence of, 281-2. 
 
 Judson on original packages, 290. 
 
 King, Rufus, letters to, 65, 68, 70, 79, 
 83, 84. 
 
 Laws, state inspection, 292; quarantine, 
 *93; power of court to annul, 305. 
 
 Legislature, Maryland, 290; Connecticut, 
 217. 
 
 Letters from Marshall to John Adams, 
 
 Ambler, John, 183. 
 
 Bailey, John, 101. 
 
 Clay, Henry, 41, 42, 43. 
 
 Carter, Charles, 47. 
 
 Curley, Rev. R. R., 45- 
 
 Chase, Dudley, 80. 
 
 Everett, Edward, 97. 
 
 Gallatin, Albert, 38. 
 
 Hamilton, Alexander, 90, 92, 93. 
 
 Iredell, James, 44. 
 
 Jefferson, Thomas, 86, 181, 182. 
 
 King, Rufus, 65, 68, 70, 79. 83, 84. 
 
 Leigh Dinner Committee, 171. 
 
 Lee, Arthur, 40. 
 
 Monroe, James, 58, 176, 178, 179, 
 
 1 80. 
 
 Madison, James, 178. 
 Marshall, James Keith, 61, 62. 
 Grandson, 61, 65. 
 Pickering, Timothy, 189. 
 Pickering, Col., 94. 
 Quincy, Josiah, 36, 37. 
 Sitgreaves, Samuel, 77. 
 Soderstrom, Richard, 82. 
 Stuart, Judge, 64. 
 Spaulding, James H., 190. 
 Story, Joseph, 96, 103, 104, 105, 106, 
 
 107, 109, no, in, 112, 114, 117, 
 
 119, 121, 122, 124, 126, 128, 129, 
 130, 132, 133, 136, 138, 140, 142, 
 
 147, 148, 150, 151. 152, 
 To unknown person, 171. 
 Washington, George, 52, 53, 154, 163, 
 
 166, 169, 172, 173, 174, 176, 177. 
 
 Wood, James, 20. 
 
 Washington, Bushrod, 49, 50. 
 
 Webster, Daniel, 184, 185, 186, 187. 
 
 Wilkinson, James, 88. 
 
 President of United States, 69, 70. 
 
 Governor of Virginia, 21, 23, 27, 29. 
 
 Governor St. Clair, 35. 
 
 Relating to public grant, 31. 
 
 Public Guard, 32. 
 
 Phoenix, 32. 
 
 Information of appointment of Secre 
 tary of State, 34. 
 
 Rescue, Logrood, 34. 
 
 Letter shows declination to act for Com 
 monwealth v. Martin s Heirs, 33. 
 
 Relating to Phoenix, 32. 
 
 Fears of Negro insurrection, 31. 
 
 To Jphn Marshall from Governor St. 
 Clair, 35. 
 
 Jefferson, Thomas, 195. 
 
 Story, Joseph, 193. 
 
 Washington, George, 193. 
 Leigh, Dinner committee, letter to, 171. 
 Lee, Arthur, letter to, 40. 
 
 M 
 
 f Marbury v. Madison, 301-313. 
 
 Moore, John Bassett, address, extract, 
 348 (preface) 
 
 Money, power of borrowing, 289. 
 
 Maryland Legislature, 290. 
 
 Masonry, opinions in letters, 97. 
 
 Murnen, Arthur (preface). 
 
 McGeever, John A. (preface). 
 
 Marshall, Chief Justice, never sought 
 public station, 13; elected to Legis 
 lature, 13; State suit, 14; became 
 conspicuous, 14; makes hazardous 
 experiment, 15; Adams made Mar 
 shall l Chief Justice, 16; solidified 
 Union, 16; related to Jefferson, 16; 
 woman suffrage, 17; opinion of sale 
 of land for taxes, 25; opinion on 
 fines by military laws, 26; opinion on 
 sheriff s commission, 27; memorial to 
 Governor of Virginia, 30. 
 
 Marshall, James Keith, letters to, 61, 62. 
 
 Monroe, James, letters to, 58, 176, 178, 
 179, 180. 
 
 Maury, Hon. Wm. A., shows relation of 
 Jefferson and Marshall, 16. 
 
 Madison, James, letter to, 178. 
 .McCulloch v. Maryland, 280. 
 
 N 
 
 Nash, Thomas, 226; impressed American, 
 
 252. 
 
 Naturalization, 294. 
 Newshafer, M. C. R., (preface). 
 
 Opinion, on sheriff s commission, 27; on 
 sale of land for taxes, 25 ; on sale 
 of Craig s Land, 28; concerning 
 Free Masonry, 97. 
 
 Owner of slaves, 201. 
 
 Ohio, 209. 
 
 Original packages, 290; Judson on, 290; 
 not defined, 291. 
 
INDEX 
 
 369 
 
 Obligation of Contracts, 297; defined, 
 
 Original jurisdiction, of Supreme Court, 
 
 303. 
 Osborn v. Bank of United States, 312. 
 
 Public lands. Marshall on. 205. 
 
 Plymouth Council, 212. 
 
 Pennsylvania Legislature, 215. 
 
 Pirates under laws of Nations, 230. 
 
 Preamble, formation of the United States 
 Constitution, 280. 
 
 Powers, implied, 282; of states to de 
 stroy Government, 283; of Congress 
 to charter bank, 289; of President, 
 300; extent of judicial. 302; of 
 courts to annul laws, 305; power 
 denied, 305; maintained, 386; im 
 plied of Congress, 313. 
 
 Packages, original, 290. 
 
 Passenger Cases, 341. 
 
 Pickering, Timothy, letter to, 189. 
 
 Pickering, Col., letter to, 94. 
 
 Quebec, 209. 
 
 quarantine laws, 293. 
 
 Juincy, Josiah, letters to, 36, 37. 
 
 Religious tests, 308. 
 
 Read, Mr., on Western Reserve, 2*1. 
 
 Supreme Court, coordinate department of 
 government, n. 
 
 Story, Joseph, 12; lines on Marshall, 
 119; letters to, 96, 103, 104, 106, 
 107, 109, no, in, H2, 114, 117, 
 
 119, 121, 122, 124, 126, 128, 129, 
 
 130, 132, 133, 136, 138, 140, 142, 
 147, 148, 150, 151, 152. 
 
 Suffrage, 17. 
 
 Sinclair, Capt., 24. 
 
 Slaves, owner of, 201. 
 
 Speeches, by Marshall, 225, to U. S. 
 House of Rep., 225; urging ratifi 
 cation of the Constitution, 253; to 
 Virginia Convention, June 28, 1788, 
 
 on Constitution, 267; eulogy on 
 death of Washington, 278. 
 
 Suits against states, 282. 
 
 States, power to destroy government, 
 283; inspection laws, 292; bills of 
 credit, 295; party to suit, 312; when 
 it is a party, 312. 
 
 Supreme court, original jurisdiction, 303. 
 
 Senators, if not elected destroy govern 
 ment, 283. 
 
 Sovereignty of states, extent, 285. 
 
 Spaulding, letter to, 190. 
 
 Stuart, Judge, letter to, 64. 
 
 Soderstrom, Richard, letter to, 82. 
 
 Sitgreaves, Samuel, letter to, 77. 
 
 Trenton, welcome to Washington, 17. 
 Tribute to Marshall, by Story, 17. 
 Tax, laid with information, 261; direct, 
 
 283 ; on income from bonds, 283 ; 
 
 United States banks, 284. 
 Treason, 304- 
 
 Territories, government of, 307. 
 Tests, religious, 308. 
 Taney, Roger B. succeeds Marshall, 349. 
 
 U 
 United States Bank, taxing of, 284. 
 
 Von Hoist, quotes J. Q. Adams, 12. 
 Virginia Convention. 13. 
 
 W 
 
 Waite, C. J., n. 
 
 Wood, James, letter to, 20. 
 
 War, levying of, 304; danger, 260. 
 
 Wilkinson, James, letter to, 88. 
 
 Washington, George, criticised in Vir 
 ginia, 14; makes himself a king, 15; 
 letters to, 52, 53, 154, 163, 166, 169, 
 172, 173, 174, 176, 177; speech on 
 death of, 278. 
 
 Washington, Bushrod, letters to, 49, 50. 
 
 Wilson, Woodrow, Columbia lectures 
 (preface). 
 
 Wife, eulogy on, 201. 
 
 Will of Marshall, 199. 
 
 Western Reserve, 221. 
 
 Webster, Daniel, letters to, 184, 185, 186, 
 187. 
 
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