/iii  ^ ^-'" —^-t —" -^ -^ —.. —--
Cv~lj




SKETCHES
OF THE
LIVES AND JUDICIAL SERVICES
OF THE
CHIEF-JUSTICES
OF THE
SUPREME COURT OF THE UNITED STATES.
BY
GEORGE VAN SANTVOORD.
NEW YORK:
CHARLES SCRIBNER, 145 NASSAU STREET.
1854.




Entered according to Act of Congress, in the year 1854, by
CHARLES SCRIBNER,
In the Clerk's Office of the District Court of the United States for the Southern
District of New York.
STEREOTYPED BY
CHARLES W. BENEDICT,
10 Spruce Street.




TO THE
HON. SAMUEL NELSON,
ONE OF THE ASSOCIATE-JUSTICES OF THE SUPREME COURT
OF THE UNITED STATES.
SIR,-I do not know to whom I can more appropriately dedicate this work
than to yourself. For more than twenty years, as Circuit-Judge, as Associate-Justice, and as Chief-Justice of the New York Supreme Court, your
learning illustrated, and your virtues adorned, the judicial records of our
State. Appointed to the elevated position you now occupy, as the successor
of a THOMPSON, and a LIVINGSTON, you carried with you the unanimous verdict of the profession that the ermine of those illustrious judges could not
have fallen on one more worthy to receive it; and a service there of nearly
ten years has rendered it abundantly evident that posterity will not seek to
set that verdict aside.
As the only present member of the Court from our own State, whose bench
and bar you may, therefore, be said to represent in the Federal Judiciary, there
seems to be such a peculiar fitness in inscribing your name on these pages,
that I esteem it not only an honor, but a privilege, in being allowed to make
this dedication. Permit me then to express the lively gratification I feel in
having your permission to inscribe this work to you.
With sincere respect, I have the honor to be your obliged and humble
servant,
G. VAN SANTVOORD.
TROY, N. Y., August 1st, 1854.








CONTENTS.
Page
JOHN  JAY,.......................................    3
JOHN RUTLEDGE,....................................  91
OLIVER ELLSWORTH,............................                193
JOHN  MARSHALL,.......................................       293
ROGER B. TANEY,.............................   459








PREFACE,
OF the five eminent J urists who have successively filled the elevated station
of ChiefJustice of the United States, only one-the first Chief-Justice, Jay
-has hitherto been the subject of anything like a complete biography.  So
far as I know, with this exception, and except also an occasional sketch, or
an obituary notice-such as that pronounced on Marshall, by his brother
Judge Story, before the Suffolk bar-no attempt has been made to preserve
in a connected narrative, even the public history and career, to say nothing of
the professional life and judicial services, of these distinguished men, three of
whom were prominent and active leaders among the statesmen of the Revolution. I have seen it stated some years since, that a son-in-law of Judge
Ellsworth was preparing an extensive and complete biography of that gentleman, containing his speeches, extracts from his writings, and many interesting
facts in regard to him, but, for some cause which I have not seen explained,
the promised memoir has not made its appearance. It might indeed seem a
singular, and unaccountable neglect, that one so eminent and distinguished in
our civil and diplomatic, as well as our judicial annals, should not hitherto
have had a place assigned him in our biographical literature, were not the
same unaccountable neglect manifest in the case of his immediate predecessor,
as well as in that of his illustrious successor, on the bench of the Supreme
Court. Surely the rich mine of American biography cannot be nearly exhausted when such treasures as the lives of RUTLEDGE, ELLSWORTH, and MARSHALL lie still undeveloped and comparatively neglected.
The plan of these memoirs, which are now submitted with unaffected diffidence to the public, is such, as necessarily to restrict that part of them which
may properly be called biographical, within very narrow limits.  They do
not pretend to the minuteness of the full and complete biography, and I have
not, therefore, assumed to dignify them with a higher title than simply that of
" sketches."  My object has 5can rather to trace the judicial history and follow




viii                         PREFACE.
the professional career of these illustrious jurists, than to write what may
properly be called their biographies. Still, I have endeavored not to neglect
entirely the essential requisites of biography, but have attempted, so far as
the limits prescribed will permit, to present an accurate and connected view
of the public and official life of each of them before coming to the bench.
Without further remark I might here submit this volume to the judgment
of the reader, and leave it to speak for itself. But a single additional observation seems proper and necessary.  I am aware that the review of judicial
decisions, which I have given somewhat at length, is a wide departure from
the ordinary course of biographical writing.  1 have not entered upon it,
however, without due reflection and design. A main object in undertaking this
work has been to trace something like a history of the United States Supreme
Court, and to present a brief and succinct, but connected, view of the Constitutional jurisprudence of the United States; and I knew of no more
agreeable and interesting mode of doing this than by combining it with
sketches of the public and professional lives of those eminent men who have
from time to time presided in the Supreme Federal tribunal. I have attempted
thus to unite judicial and constitutional history with biography. This has
enabled me to take a wider and more general view of the entire subject; to
embrace within these sketches not only those matters which are properly the
subject of the memoirs of a life, but also to trace the history of the Federal
judiciary from its earliest beginnings; to consider the facts and results connected with the adoption of the Federal Constitution, and to review, or notice,
more or less fully, most of the important Constitutional questions which have
been discussed in the Supreme Court from the foundation of the government
to the present time.
There are those, perhaps, who may consider such a work as too professional,
to claim a place within the sphere of general literature, and to regard such
an analysis of legal cases as has been incorporated into it, as incompatible
with the legitimate objects of popular biography. Perhaps such a criticism
tnay be just. It is not, however, for the author to anticipate it.  If he has
misjudged in this respect, he has at least, the satisfaction of knowing that
the general plan of his work has been considered with favor by friends in
whose judgment he has confidence; and should its success not meet their expectations he can but attribute it to its imperfect manner of execution, and
not to any want of public interest in that branch of the subject alluded to;
-a subject which can never be indifferent to the American citizen-the constitutional history and jurisprudence of his country.




JOHN JAY.








JOHN JAY.
HISTORY is not always just in its discriminations, or correct in its
estimate of individual character and of the true worth and merit of
public services. There is something so attractive to the historian in
tracing successful results in administration, and brilliant achievements on the field of battle, that he is apt to lose sight of the less
striking but no less valuable labors of the discreet statesman in the
legislature, the jurist on the bench, and the ambassador in the field
of foreign diplomacy. Thus it happens in regard to our revolutionary struggle, that while the popular admiration centres round the
more prominent actors on the scene, there is a class of men, standing comparatively in the background, whose characters have never
been fully appreciated, and to whose memories history has not yet
done entire justice. These are the men of the Continental Congress
and of the Federal and State Conventions-the Livingstons, the
Rutledges, the Mlorrises, the Ellsworths-the men who aided, not
only in achieving the American Revolution, but in laying broad and
deep the foundations of liberty, and in reconstructing our political
institutions. Without their aid, however successful the contest, it
must have ended in ultimate defeat. The battle might have been
won, but the fruits of victory never obtained. The arm of the conqueror would have fallen, paralyzed, in the moment of his triumph;
for the experience of history shows that the civilian and the statesman are as necessary as the soldier to the successful issue of a revolution.




4               LIVES OF THE CHIEF-JUSTICES.
One of these men was JOHN JAY-a man of modest virtue and
unpretending merit, who quietly, faithfully, and ably discharged the
most important duties in the sphere he was called upon to fill.
There are those who played a more imposing and brilliant part than
he in the revolutionary drama, and whose names posterity has been
inclined to inscribe higher on the scroll of fame; but there are few
who are more deserving the respect and veneration of their countrymen. His signature, it is true, is not found with those of Jefferson
and Adams, affixed to the Declaration of Independence; nor with
Hamilton and Madison did he assist in raising the fabric of the
Federal Constitution. But no man rendered a more zealous and
energetic support to the one, and none contributed more efficiently
to sustain and carry out the other. And whatever in our day may
be thought of the correctness of some of his political views, no
American will fail to render a ready homage to that active zeal,
courage, and devotion to the common cause, as well as to that honesty
of purpose and moral rectitude which characterized the public, as it
did the private life of one of the purest men of the Revolution.
The name of John Jay should be especially venerated by the
American lawyer;-indeed it is a name that cannot soon be forgotten. The first Chief-Justice of the Supreme Court of the State of
New York-the first Chief-Justice of the Supreme Court of the
United States under the Federal Constitution, he occupied a position which of itself, and without the aid of that learning, and those
varied accomplishments which adorned his mind, would have left a
memory that could not soon have faded from the records of American
jurisprudence.
I shall have occasion in attempting a sketch of the life and services
of the first Chief-Justice of the United States, to consider him
in the character of a lawyer and a judge, as well as in those more
public capacities, legislative, diplomatic and executive, which he
filled during the greater portion of his active life. It is not only as
a statesman, but as a jurist, that John Jay ought to be known to his
countrymen. For it is from the record of his judicial labors, as well
as from the history of his political career, that we are to draw a true
estimate of his character, and of the extent and value of the services
he rendered his country.




JOHN JAY.                         5
JOHN JAY was born in the city of New York, on the 12th day of
December, 1745.   He was descended on the father's side from
French ancestry. His mother's ancestors were from Holland. His
paternal grandfather, Pierre Jay, was an opulent merchant at Rochelle. A Protestant, he was obliged to leave France on the revocation of the edict of Nantz, and take refuge in England. One of
his three sons, Augustus, emigrated to New York, and married a
daughter of Balthazar Bayard, whose ancestors, like those of Mr. Jay,
had been Protestants, and had been obliged to emigrate from France
to Holland. Three daughters and one son were the fruits of this union.
The son, in honor of the Rochelle merchant, was named Peter. In
1728 Mr. Peter Jay married Mary Van Cortlandt, the daughter of
Jacobus Van Cortlandt, a gentleman belonging to one of the oldest
families of the Dutch colonists who settled Manhattan Island. Peter
Jay had ten children, of whom the subject of this sketch, JOHN, was
the eighth. The family, we are told, removed to the town of Rye,
on Long Island Sound, about twenty-five miles distant from New
York, and John was carried there in his nurse's arms.
At the age of six or seven years, his father remarks of him, that
he is "of a very grave disposition, and takes to learning exceedingly
well;" and again, " My Johnny gives me a very pleasing prospect.
He seems to be endowed with a very good capacity, is very reserved,
and quite of his brother James' disposition for books."  At the age
of eight John was sent to a grammar-school at New Rochelle, kept
by the Rev. Mr. Strope, pastor of the French church at that place.
At fourteen he entered King's College, in the city of New York,
over which Dr. Samuel Johnson then presided. Egbert Benson,
Peter Van Schaack, Richard Harrison, Gouverneur Morris and
Robert R. Livingston, all of whom, like Mr. Jay, subsequently pursued with distinction the legal profession, were among his college
acquaintances. He graduated on the 15th May, 164, with the
highest collegiate honors, having been selected to speak the Latin
salutatory.
The father and grandfather of Mr. Jay had been merchants.
That honorable pursuit, however, did not agree with the tastes and
inclinations of the young graduate. The choice of a profession being
left to him, he selected that of the law, and entered the office of




6               LIVES OF THE CHIEF-JUSTICES.
Mr. Benjamin Kissam, an eminent practitioner in the city of New
York.
We have no very accurate account of the incidents attending the
clerkship and preparatory studies of the future Chief-Justice-they
were probably much the same as those which are familiar to the experience of every student. It must be recollected, that in those
days, a preparation for the legal profession was not, as it often is at
present, an agreeable recreation. It was a real labor, and often a
drudgery. Printed blank forms were unknown, and every thing was
written, even the argument of questions of law. The labors of a
clerkship were consequently very arduous, and a large portion of the
time of the student was occupied in attention to office duties. Nor
were elementary treatises —those ready and convenient aids in acquiring the elements of the profession-so plenty then as now. Finch's
Law, Wood's Institutes, or Coke upon Littleton were the books
usually placed in the hands of the student at the commencement of
his clerkship, each of which, to use the words of Lord Mansfield,
applied to Coke, may be called " an uncouth, crabbed author, who
has disappointed and disheartened many a tyro." The first volume
of Blackstone's Commentaries was published in England in 1765,
the second part some three years later. Up to this time the difficulty
of selecting the book which should initiate the student in the
elementary principles of law, is admitted by Lord Mansfield. "Till
of late," he says, " I could never with any satisfaction to myself answer that question, but since the publication of Mr. Blackstone's
Commentaries, I can never be at a loss."   In entering upon his
clerkship, however, Jay had not the advantage of this admirable
treatise, and, therefore, unlike those students who have succeeded
him, could not, ab initio, "imbibe imperceptibly (quoting again the
words of Lord Mansfield,) the first principles upon which our excellent laws are founded."  To him, as to others in those times, the labor
was tedious and toilsome; but at the same time it was a healthy intellectual exercise, and a vigorous mental discipline.*
* The reader may be curious to learn the course of legal study which in Jay's
time was recommended to the student. The following extracts are made from
an old manuscript manual in my possession, bearing date 1768. It is in the hand



JOHN JAY.                              7
Between Mr. Jay and the estimable gentleman in whose office he
read law, the most entire confidence existed, which gradually ripened
into familiarity and friendship. This is attested by several letters
written by Mr. Kissam to Mr. Jay. In one of these, dated soon
after Jay was admitted to the bar, Mr. Kissam, in a tone of playful
and friendly familiarity, compliments his pupil upon having successfully tried several causes for him, which, he says, was done " by a
kind of inspiration."   Alluding to one cause in which Jay was
opposed to him, Mr. Kissam remarks, " As to the cause about Captain's Island, this, tell Mr. Morris, must go off; because as you are
concerned against me, I can't tell where to find another into whose
head the cause can be infused in the miraculous way of inspiration,
and without this it would be rather too intricate for any one to manage
from my short hints."
writing and was the property of a cotemporary of Mr. Jay, then a student-at-law
in the office of William Smith, the historian of New York.
" But now I bring our student home to the studies of his profession of the law,
and I would advise him to read these books, in the following order:
"First, for the knowledge of the law in general:
"1. The treatise of laws in Wood's Institutes of the Civil Law, or in Domat,
which are both the same.
"2. Puffendorf de Officio Hominis et Civis, or an English translation of it
called "The Whole Duty of Man according to the Law of Nature," or the abridgment of Puffendorf, in two volumes, by Spavin."
And before entering further into the law of Nature and Nations and the Civil
Law, the writer advises a general study of the elements of the Common Law, in
the following order:
"Hall's History of the Common Law.
"Fortescue's Practice of the Laws of England.
"Sir Thomas Smith's De Republica.nglorum.
"The first book of Doctor and Student, De Fundamentum Legum n./nglie.
"The second part of Bacon's Elements.
"Wood's Institutes of the Common Law."
After recommending a farther and more extensive reading of the Law of Nature
and Nations and the Civil Law, he remarks:
" Then to fill up and enlarge your ideas you may read Bacon's Abridgment of
the law, which it is presumed will all be soon published. In reading this Abridgment, which is contrived so as to be read pleasantly, I would advise that you constantly refer from the Abridgment to Wood, and from Wood to the Abridgment,
because I would have these books the basis or foundation of all your studies."




8                LIViES OF THE CHIEF-JUSTICES.
Mr. Kissam and Mr. Jay were frequently opposed to each other in
the trial or on the argument of a cause. On one of these occasions,
being hard pressed in the argument, the former remarked, " I have
brought up a bird to pick out my own eyes."  " Not so," retorted Jay,
" not to pick out, but to open your eyes."*
On entering upon the practice of the law, Mr. Jay associated
himself with his relative, Robert R. Livingston, the future chancellor, but the connection was soon dissolved.  From   his debut as an
advocate in the colonial courts, it is said he entered upon a lucrative
practice, and continued it down to the period of the revolutionary
war.  I have not been able, however, to draw     from the imperfect
record of colonial jurisprudence any very satisfactory information
respecting his forensic career,t or even of the more important causes
in which he was engaged. The race of reporters did not exist in
those days, and the colonial decisions and adjudged cases with which
the names of Jay, Livingston, Benson, Morris, Duane and their
cotemporaries were identified must remain for us a lost and comparatively forgotten record.$ Suffice it then to say that the practice
of Mr. Jay during these six or eight years was extensive and lucrative,
that he exhibited professional ability of the highest order, and that he
acquired an eminent and proud position as an advocate at the New
York bar.
* Life of John Jay, by his son, William Jay.
t It may be mentioned as a fact interesting to the legal profession, that in 1770
the young lawyers of New York formed a club called " The Moot," at which legal
questions were discussed and argued in form. Some of the records of this club
are still preserved. Its decisions acquired great authority, and the questions discussed and decided were considered as professionally settled. Among the junior
members of the club were Jay, R. R. Livingston, James Duane, Egbert Benson,
Gouverneur Morris, and Peter Van Schaack. The older members of the bar also
regularly attended and participated in these discussions and arguments, and among
them are found the names of those veteran lawyers, William Smith, Samuel Jones,
William Livingston, Benjamin Kissam, John M. Scott, and Richard Morris.
4 The author of the Life of William Livingston thinks we have lost very little
in this respect. " An examination of Mr. Livingston's registers and business letters," he says, " would much tend to diminish any regret which may be felt for
the want of colonial reports. A great number of the cases are suits for the collection of debts owned by English merchants; and causes under the complex law
of ejectment, now so happily exploded, form another large class."-Sedgwick's
Life of Livingston, p. 71.




JOHN JAY.                          9
But the quiet and peaceful course of professional life was about
to be broken. The contest between the colonies and the mother
country commenced. The young lawyer was summoned from his
briefs and his cases, from his books and his precedents, to a nobler
and more enlarged field of action. Nor did John Jay turn an unwilling ear to the summons. While others hesitated and wavered,
while some of his own friends and intimate associates counselled submission or passive non-resistance, his voice was raised among the
first in opposition to the arbitrary measures of Great Britain. On
the 16th of May, 1774, Mr. Jay attended the first meeting of the
citizens of New York called to " consult on measures proper to be
pursued in consequence of the late extraordinary advices received
from England." The result of that meeting was the appointment of a
committee of fifty, of which Jay was one, and a subsequent report,
said to be from his pen, which recommended the convocation of a
Congress of deputies from the thirteen colonies.
The recommendation was adopted. A Congress was called and
convened at Philadelphia, on the 5th of September, 174. Jay was
elected a member from New York, and took his seat on the first day
of the session. Though one of the youngest members of the Congress,
being then only in his twenty-ninth year, he was placed upon the committee to draft an address to the people of Great Britain. That celebrated address is from his pen. It had been composed and written by
Jay in the room of an obscure tavern. It was reported to Congress by
Mr. Livingston, and adopted as the work of the entire committee, and
its paternity was not immediately known.
Jefferson attributed it to Gov. Livingston, by whom it had been reported, as chairman of the committee, and told that gentleman that he
regarded it as " the production of the finest pen in America." The
author of the life of Jefferson states, that this coming to the ears of
Mr. Jay, he was at some pains to set Jefferson right in the matter and
assert his own claims to its authorship.
Of the proceedings of this Congress it is not necessary now to
speak. It was composed of fifty-five members. Among them were
the distinguished orators from Virginia, Patrick Henry and Richard
Henry Lee.*  The debate was opened by Mr. Henry in a speech of
* Prof. Tucker remarks in his Life of Jefferson, that though Henry and Lee




10              LIVES OF THE CHIEF-JUSTICES.
matchless power and eloquence-a vivid and glowing description of
which has been drawn by the graphic pen of Mr. Wirt. R;chard
Henry Lee followed, and charmed with his graceful eloquence an
audience that had been spell-bound by the more potent declamation
of his colleague. As he closed, Mr. Chase, a delegate from Maryland,
whispered into the ear of one of his colleagues, "we may as well
go home; we cannot legislate with these men." The whole assembly
seemed to acknowledge their superiority. Lee was made chairman
of the committee to prepare the address to the People of Great
Britain; and Henry of the committee to prepare the address to the
King. It soon became apparent, however, that their superiority consisted in powers of eloquence alone. The address of Lee fell far
short of the high expectations that had been raised. Its reading
disappointed the whole assembly. " After all," remarked Mr. Chase,
with that quick perception and ready boldness which so strongly
characterized his mind, "they are but men, and very common men,
too."* After some faint and equivocal compliments, the address was
laid on the table, and Gov. Livingston and John Jay were appointed
upon the committee. The result was, as we have seen, the production
of an address which the Congress adopted-an address worthy of
the men and of the occasion, and fully equal to the crisis which called
it forth.
Mr. Jay was now actively and warmly enlisted in the cause of the
Colonies. A full review of his career from the time when he first
took his seat as a delegate in Congress to the period when he
accepted the Spanish mission, would comprise a record of the history
of the Colonial struggle. The limits of the present sketch will not
permit a detail, much less a discussion of these stirring events, and all
that can be admitted here, is to indicate generally and briefly, the part
taken in them by the subject of this memoir.
The first Revolutionary Congress, after a brief session, adjourned
to meet again on the 10th of May in the following year. Accordingly,
at that time, the Congress assembled at Philadelphia. It continued
its session, with the exception of a brief recess in the month of
bore the palm for eloquence in debate, yet " for that of the pen, the first place
must unquestionably be awarded to Mr. Jay, of New York."
* Wirt's Life of Patrick Henry.




JOHN JAY.                          11
August, during the remainder of the year. The decisive action
which attended the deliberations of this Congress is well-known.
The crisis was now at hand-the battle of Lexington had been
fought-the alternative presented was armed resistance, or abject
submission and slavery. A new set of ideas seemed to have been
developed. The revolutionary mind had been ripened and matured in
a day. A profound lesson of experience had been learned, and a vast
stride taken in the direction of Colonial independence. It was no
longer, as at the opening of tne first Congress, a question of non-importation-of peaceable remonstrance. The aspect of affairs had
changed, and it had become a question, which might well have made
the boldest hesitate, of armed, open, determined, and manly resistance.
But the men of the Continental Congress did not falter. The crisis
was met, boldly and manfully; an army was organized; Washington
appointed commander-in-chief; subordinate officers nominated, among
whom, on motion of Mr. Jay, John Sullivan, a modest and unobtrusive
delegate from New Hampshire, was commissioned a Brigadier-General
in the American army.
The important part taken by Mr. Jay in the deliberations of this
Congress must be passed hastily over, and I can barely allude to a
few prominent public acts in which he was engaged. His active and
vigorous pen was almost ceaselessly at work, and his voice was frequently heard in the deliberations of the assembly. He was a
member of the committee which prepared the DECLARATION setting
forth the causes and necessity of the Colonies taking up arms.*
He was also upon the committee appointed to carry out the measure
originated by himself, of presenting a petition to the sovereign to
redress the grievances of the Colonies, the rejection of which left no
alternative but armed resistance. By direction of Congress he prepared an address to the people of Canada. He also wrote the
celebrated address to the people of Jamaica and Ireland, in which
he depicted in vivid colors the injuries which the Colonies had suffer* Mr. Jefferson and Mr. Dickinson were subsequently added to this committee.
The address of the committee was drawn by Jefferson, but being considered " too
bold," it was remodelled by Mr. Dickinson. It is a remarkable fact that this address, though reported only a year before the Declaration of Independence, disclaims all design to dissolve the union between Great Britain and the Colonies.




12             LIVES OF THE CHIEF-JUSTICES.
ed, and traced the origin of their rights and the grounds of their
resistance.
Though a less prominent member of this Congress than some of
his distinguished compatriots-though neither a Henry, a Rutledge,
nor an Adams, in the rare gifts of an impassioned eloquence-still
it is not claiming too high a distinction for the zeal, patriotism,
ability, and modest worth of John Jay, to place him in the very
front rank of those illustrious men who laid the foundations of the
Republic.
The Continental Congress, it is well known, was a mere convention of delegates, a body, organized, it is true, but without specific
objects, real authority, or definite powers. The Congress was of
itself neither a sovereignty nor the representative of a sovereignty.
The union of the colonies was little more than a league, and even
after the declaration of independence it was a league scarcely of
independent states, for though social institutions remained, yet the
political fabric had been swept away by revolution, and the labor of
organization and reconstruction was yet to be done. This was the
work of some of the best and wisest men in the respective states of
the confederacy. In the State of New York it was eminently the
work of John Jay.
While yet a delegate in Congress, Mr. Jay had been elected, in
the month of April, 1776, to the New York Colonial Convention.
He took his seat in that body on the 25th of May, without resigning
his commission as a member of Congress. It seems to have been
his intention to return, but the New York Convention required his
attendance, and, as he informs his colleague, Mr. Duane, " directed
me not to leave them till further orders." And thus he was deprived
of the honor of affixing his signature to the DECLARATION OF
INDEPENDENCE. But while his name is not attached to that noble instrument, the records of the New York Provincial Convention attest
the warmth and ardor of his approval of the act. From  the committee to which it was referred in the Convention, Mr. Jay as chairman reported immediately the following resolution, which was unanimously adopted:
" Resolved, unanimously, That the reasons assigned by the Continental Congress for declaring these united Colonies free and inde



JOHN JAY.                       13
pendent States, are cogent and conclusive, and that while we lament
the cruel necessity which has rendered that measure unavoidable, we
approve the same, and will at the risk of our lives and fortunes, join
with the other colonies in supporting it."
This resolution was adopted on the day of the opening of the Convention, July 9th, 17f6. It is somewhat remarkable that though
Chancellor'Livingston was a member of the committee which
drafted the Declaration of Independence, of which Jefferson was
chairman, yet his name is not found attached to that instrument.
The fact is, that though the declaration purports to be " the unanimous declaration," &c., yet the Chancellor and some other members
of the Congress thought it premature.   Indeed the whole New
York delegation asked and obtained leave to retire, on the ground,
that having been appointed when a reconciliation with Great
Britain was possible, they did not regard themselves as empowered
to sign this important manifesto. None of the New York members
signed it until after it was approved by the New York Convention;
and it was not until the 15th of July that their signatures were
actually placed to the Declaration. To John Jay, therefore, though
his name does not appear attached to that celebrated instrument, is
justly due the credit of having promptly and boldly taken the first
official step toward the recognition by the State of New York of
American Independence.
The new STATE CONVENTION was called in pursuance of a resolution of the Continental Congress, recommending to the respective
Colonies the adoption of independent governments.  The former
Assembly, to which Mr. Jay had been summoned from his seat in
Congress, having been convened while the Colony was yet under the
government of the Crown, had been established for the sole purpose
of opposing the encroachments of the British parliament, and not
with a view of declaring the Colony independent, and establishing
a new form of government. To remove all doubts whether the
Assembly was invested with authority to deliberate and act on these
important questions, the Colonial assembly, on the 31st May, had,
on motion of Mr. Jay, called a CONVENTION to constitute and establish a new government. This body met at White Plains on the 9th
July, 1776, and, as has been noticed, immediately ratified and con



14              LIVES OF THE CHIEF-JUSTICES.
firmed unanimously the Declaration of the Independence of the
Colonies. This first decisive step having been taken, nothing
remained but to establish a constitution and organize the new government.
The Convention comprised a large share of the best intellect and
worth of the Colony. Mr. Jay found himself associated with such
men as Philip Livingston and James Duane of New York, Robert
R. Livingston of Dutchess, the future Chancellor, Leonard Gansevoort and Robert Van Rensselaer of Albany, Gouverneur Morris,
Pierre Van Cortlandt and Lewis Morris of Westchester. It is
certainly no small compliment to the ability and character of Mr.
Jay, still a young man, but little more than thirty years of age, that
in a Convention numbering among its members such men as the
Livingstons,. the Morrises, and their illustrious associates, he should
have bhen selected as the delegate to be charged with the responsible
and arduous duty of drafting a Constitution for the new Commonwealth. Being assigned this duty and placed at the head of the committee created for that purpose during the first month of the Convention, he at once directed the whole power of his mind, and the resources
of his political experience and judicial learning to attain the great end
in view, namely the drafting of a Constitution fit to be established as
the fundamental law of a free people.
It may here be remarked, that the idea of a written Constitution,
emanating from and sanctioned by the people, as the basis of government and political and social rights, if not entirely a novel idea,
was at least, practically, an untried experiment, prior to the formation of the State Constitutions. It had been hinted at and partially developed by some of the liberal writers and statesmen during,
and subsequent to, the period of the English Revolution. Vane,
Sidney, and Locke, had successively entertained the subject as an
abstract political truth, and the latter had even attempted its practical development.* But it is not too much to say that it remained
a theory only, and that hitherto no successful instance of a written
* In the Carolina colonies. This curious Constitution, almost as elaborate
unique and original in its way as that remarkable instrument which more than a
century afterward Sieyes presented to Bonaparte, was adopted by the Proprietaries, but after a few years wasted in attempting to put it into practical operation it
proved itself a miserable failure, and was abandoned.




JOHN JAY.                        15
constitution or fundamental law had existed in Christendom. The
Bill of Rights, the charters of some of the Colonies, and particularly
those established in one or two of the proprietary governments,
such, for example, as the " Concessions of the proprietors of New
Jersey with the people who might settle or plant there," approximated
this idea of a written Constitution, but did not wholly realize it.
The Bill of Rights was in the nature of a compact between king and
people; the Colonial charters were royal grants, not resting upon, but
independent of the popular sovereignty; the proprietary governments
were what they claimed to be, concessions to the people, not original
and elementary popular rights. It remained for the Colonists to put
in successful operation this new political experiment, in the formation
and organization of the State sovereignties-an experiment, destined,
a few years later, to be crowned with complete success in the adoption
of the Federal Constitution.
The first Constitution of the State of New York was mainly the
work of John Jay. It was reported on the 6th of March, 1777,
and adopted the 20th of April of the same year, at the village of
Kingston, to which place the Convention had removed. This Constitution, which contained for nearly half a century the fundamental
law of the State, is a monument to the memory of its illustrious
author more lasting than a monument of brass or marble. I do not
mean to assert that the Constitution was all that it might have beenthat it was a perfect production-that it contained no imperfections
and no errors.   On the contrary, experience demonstrated the
necessity of amendment; a trial of forty-five years proved that it
was susceptible of material alterations; the progress of the age
and the march of liberal ideas opened the door to improvement; but
it is not too much to say that in the circumstances under which this
Constitution was promulgated, and in view of the habits, customs,
and ideas of the age, it was an original and vigorous, as well as a
successful innovation, and it stamped its author as a bold and radical
but judicious reformer.
All the guarantees of English liberty secured in the Bill of Rights
were carefully preserved in this Constitution, —the trial by jury, the
habeas corpus, and the privilege of the accused to defend by counsel.
All political power was declared to be derived from the people. In




16               LIVES OF THE CHIEF-JUSTICES.
addition to this, the free exercise and enjoyment of religious worship
was established,* and the right of the people to bear arms in their
own defence recognized and secured. Ten years afterwards, in the
Federal Convention, Hamilton proposed, and sustained, in a speech
of surpassing power, the project of appointing an executive and Senate, to hold for life or during good behavior. But Jay, even at this
early day, comprehended the more correct idea of popular government.   The New York Constitution provided for the election of an
executive to hold office for three years, a Senate for four years, and
an annual Assembly.   The voting by ballot was not definitely established; it was left to be determined by the Legislature, a provision
which may be regarded as the effect of excessive caution and prudence, if not of timidity, but one which the state of the times and the
novelty of the experiment at that day might justify. So too in
regard to the property qualification attached to the elective franchise,
and the qualifications for office, the provisions of the Constitution
fell far short of what we now regard as the correct and legitimate
rule of political action, but at that day, when the colonists were just
emancipated from British tutelage, and aristocratic customs and
notions of hereditary right still prevailed, this section of the Constitution was a sensible reform, if not a radical revolution. The provision
that " a wise and discreet freeholder of this State shall be, by ballot,
elected Governor, by the freeholders of this State, qualified as before
described, to elect Senators "-that is possessing a freehold of forty
pounds, or renting a tenement of the yearly value of forty shillings,was but a step from asserting the great principle of UNIVERSAL SUFFRAGE, which was established by the Constitution of 1821 as the basis
of representative democracy.
As to the social institutions of the State, the Constitution left
* In regard to this clause, Mr. Jay, in his celebrated charge to the Grand Jury,
at Kingston, uses these noble and dignified expressions. " Every man is permitted
to consider, to adore, and to worship his Creator in the manner most agreeable to
his conscience. No opinions are dictated, no rules of faith prescribed, no preference given to one sect to the prejudice of others." * * * "In a word, the
Convention by whom that Constitution was formed, were of opinion that the
Gospel of Christ, like the ark of God, would not fall, though unsupported by the
arm of flesh; and happy would it be for mankind if that opinion prevailed more
generally."




JOHN JAY.                         17
them very nearly in the position it found them. The revolution was
purely political. The Convention did not undertake to meddle with
the laws of property, the domestic relations, or indeed in any other
respect with the judicial polity of the State. Accordingly, the Constitution re-enacted and established as the law of the State, the
COMMON LAW of England, and such parts of prior statutes, both
acts of Parliament, and acts of the Colonial Legislature, as were
applicable and not repugnant to the Constitution, with the restriction, that all such parts thereof as might be construed " to establish
or maintain any particular denomination of Christians or their ministers, or concern allegiance heretofore yielded to," &c., be abrogated
and rejected.
Such were the main features of the Constitution of 1777. It may
be remarked that Jay himself was not entirely satisfied with it. The
vote on its final passage was taken during his temporary absence
from the Convention, and some additional sections had been added
which he disapproved; what these sections were, does not clearly
appear. He intended also, he says, to have moved several amendments, one for the support of literature, one against the continuance
of slavery in the State, and one requiring all persons taking office
to swear allegiance to the government, and renounce all allegiance to
foreign kings, princes and states in all matters, ecclesiastical as well as
civil.
Approving, however, the main features of the new Constitution,
Mr. Jay devoted his best efforts to the task of setting it practically
in operation. In the organization of the courts under it, the Convention tendered him the place of Chief-Justice of the Supreme
Court, which he at once accepted, Livingston being at the same
time appointed Chancellor. The Convention then adjourned, after,
appointing a "Council of Safety," of which Jay was a member, in
whose hands was vested the absolute sovereignty of the State during
the interim between the adjournment and the organization of the
new government. This Committee was armed with plenary and unlimited power. It was indeed an arbitrary dictatorship. The crisis
was such as seemed to demand it, for the darkest hour of the revolution had come. That power was exercised vigorously, but wisely
and discreetly. It was wielded with tremendous effect, but not
2




18             LIVES OF THE CHIEF-JUSTICES.
abused. It was the power which in a similar case was lodged by the
French Convention in the hands of the Committee of Public Welfare,
but it was used for wiser and better ends, for there were no Couthons
and Robespierres upon the Newv York Council of Safety.    The
measures adopted against the royalists were such as the exigency of
the times demanded. They were vigorous, stringent, severe. The
jails and churches were filled with prisoners. Banishment and confiscation became the order of the day. But these measures, though
harsh and rigorous were tempered with as much mildness as the nature
of the case would admit. No member of that Committee, and least
of all John Jay, is liable to the charge of wielding political power for
the purposes of individual oppression.
One of the finest traits in the character of Jay was the warmth of
his social feelings, and the constancy of his friendships. Adversity
never separated him from his early associates, nor did political
differences cause him to forget the attachments of other days. It
was during the administration of the Council of Safety that the formidable invasion of Burgoyne threatened the safety of New York.
General Philip Schuyler at that time had command of the army of
the north. Jay was the friend of Schuyler; he knew and appreciated the worth, the patriotism, the chivalric honor, of that brave
officer and gallant gentleman. In a moment of weakness, Congress,
yielding either to false and malicious representations, or a timid
policy, recalled Schuyler at the very moment when victory was
within his grasp, and placed Gates in command. Schuyler felt the
indignity, but with the generous magnanimity of his character, sacrificing every personal feeling to the cause of his country, cheerfully
co-operated with the plan of the campaign, and aided Gen. Gates
to reap the laurels which justly belonged to himself. Among the
friends who adhered through good report and through evil report to
Schuyler, and who never failed to vindicate his reputation, none was
truer or more faithful than Jay.   Sharing the same ancestral
blood, the blood of the early Dutch settlers of the colony, and satisfied with the entire correctness of Schuyler's conduct, as well as the
purity of his motives, Jay did not conceal his indignation at this act
of injustice. In a letter to Mr. Duane, then in Congress, he expresses what he conceives to be the true reason. " General Schuy



JOHN JAY.                        19
ler is recalled," he says, " to humor the eastern people, who declare that
their militia will not fight under his command."  The warmth
of his friendship, and the delicacy of his sympathy, are beautifully
expressed in two or three letters to Schuyler himself about this
period. In one of these, written some months after the victory of
Saratoga, and while the laurels were yet fresh and green upon the
brow of the commanding general, Jay, with his accustomed delicacy
of expression, ventures to predict what the future has fully realized, and posterity cordially admits. "Justice will yet take place,
and I do not despair of seeing the time when it will be confessed that
the foundation of our success in the northern department was laid by
the present commander's predecessor."
Not only to political associates, but even to political opponents,
did Jay evince the kindliness of a generous nature; and le never
failed to respond to the recollections of early attachments. Few
among the revolutionary leaders originated, advocated, and carried
out more stringent and effective measures against the royalists and
the disaffected, and yet he was never deaf to the voice of private
friendship, and never disregarded the appeal of one to whom he had
been kindly attached in other days. To his old classmate at King's
College, Peter Van Schaack, who had from conscientious motives
declined taking a part with the colonists, he writes with a feeling of
the liveliest interest; and the cordial intercourse is renewed when
one is the honored representative of his country, and the other an
exile in a foreign land. To Col. De Lancey, who had taken arms
in the royal cause, and who was a prisoner on parole, he writes
during the troubles of 178: " The friendship which subsisted between us is not forgotten; nor will the good offices formerly done
by yourself and family cease to excite my gratitude. How far you
may be comfortable and easy I know not. It is my wish, and shall
be my endeavor, that it be as much so as may be consistent with
the interest of that great cause to which I have devoted every thing I
hold dear in this world."
John Jay was a revolutionist, but no terrorist. He was resolute,
stern, and inflexible, but not proscriptive. His was the uncompromising action based upon principle, not prompted by personal enmity. He had not a grain of bitterness in him, not a drop of




20              LIVES OF THE CHIEF-JUSTICES.
malice, not the slightest tincture of vindictiveness. Firm, resolute,
and unbending, but equable, magnanimous, generous and just, a man
to suffer, rather than do a wrong, like Aristides he would have
calmly written his own name upon the shell, and without a regret or
a sigh, have retired into banishment.
The new State government went into operation in September,
1777. Jay having refused to be a candidate for Governor, George
Clinton was elected to that office, and Pierre Van Cortlandt Lieutenant-Governor. Walter Livingston was chosen speaker of the
Assembly. The Legislature promptly re-appointed Mr. Jay ChiefJustice of the Supreme Court, and Robert R. Livingston Chancellor.
It was but a few days before this re-appointment that the ChiefJustice held the first court under the State Constitution. It met at
the village of Kingston, on the 9th of September, 177I. The circumstances under which it had convened were peculiar. The independence of the State had been declared, but that independence had
not been established.  A powerful army under Burgoyne was approaching Albany; another army was preparing to advance up the
Hudson to effect a junction with the first, and in a few weeks after,
actually destroyed the very village in which the court was assembled. To administer justice under the authority of the State was a
crime and a treason against the British government, still claiming
jurisdiction. It required, therefore, a portion of that same unflinching resolution, and sublime moral courage, which nerved the men
who declared the independence of the colonies, to carry out fully
and effectually this novel undertaking. The Chief-Justice was equal
to the task. He did not hesitate, he did not doubt. lie had entire
faith in the success of the revolution; faith in the people; faith in
the new Constitution which had been adopted; faith in the ultimate
issue of the contest. He presided during the session of the court
with a calm dignity, an intrepid courage, a confident assurance of
rectitude which did not fail to impress itself upon the people. His
charge to the Grand Jury was such as it might have been if the
independence of the State had been already acknowledged, and the
foot of the enemy no longer desecrated American soil. The following passages are worthy of remark:
"It affords me, gentlemen, very sensible pleasure to congratulate




JOHN JAY.                        21
you on the dawn of that free, mild, and equable government which
now begins to rise and break froi amid those clouds of anarchy,
confusion, and licentiousness which the arbitrary and violent domination of Great Britain had spread in greater or less degree throughout this and the other American states. This is one of those signalinstances in which Divine Providence has made the tyranny of princes
instrumental in breaking the chains of their subjects, and rendered
the most inhuman designs productive of the best consequences to
those against whom they were intended.
"The infatuated sovereign of Great Britain, forgetful that kings
were the servants, not the proprietors, and ought to be the fathers,
not the incendiaries of their people, hath, by destroying our former
constitutions, enabled us to erect more eligible systems of government on their ruins; and by unwarrantable attempts to bind us in
all cases whatever, has reduced us to the happy necessity of being free
from his control in any.
"Whoever compares our present with our former Constitution,
will find abundant reason to rejoice in the exchange, and readily
admit that all the calamities incident to this war will be amply compensated by the many blessings flowing from this glorious revolutiona revolution which in the course of its rise and progress is distinguished by so many marks of the Divine favor and interposition that
no doubt can remain of its being finally accomplished."
The Chief-Justice, after commenting upon several features of the
new Constitution in terms of unqualified approbation, particularly that
relative to the rights of conscience and private judgment in matters of
religion, and freedom of religious worship, remarks:
"But let it be remembered, that whatever marks of wisdom, experience, and patriotism there may be in your Constitution, yet like
the beautiful symmetry, the just proportion, and elegant forms of our
first parents before their Maker breathed into them the breath of
life, it is yet to be animated, and till then may indeed excite admiration, but will be of no use. From the people it must receive its
spirit, and by them be quickened. Let virtue, honor, the love of
liberty and of science be and remain the soul of this Constitution,
and it will become the source of great and extensive happiness to
this and future generations. Vice, ignorance, and want of vigilance




22              LIVES OF THE CHIEF-JUSTICES.
will be the only enemies able to destroy it. Against these be forever
jealous."
Mr. Jay retained the office of Chief-Justice of the Supreme Court
two years. He did not, however, actively discharge its duties during the whole of this period  On the 10th November, 1178, the
Legislature elected him a delegate to represent the State in Congress. By the Constitution, a Judge of the Supreme Court was
prohibited from holding any other office, except that of delegate in
Congress, on a special occasion. The controversy respecting the " New
Hampshire Grants" having arisen, this was voted a special occasion,
and the Chief-Justice was delegated to Congress without vacating
his seat on the bench. On the 10th of December, three days after
he took his seat, he was chosen President of Congress. Conceiving
his continued residence at Philadelphia inconsistent with the discharge
of the duties of ChiefJustice of the Supreme Court of New York,
Mr. Jay during the following year resigned his Judicial office.
Governor Clinton at first refused to receive the resignation. Mr.
Jay, however, persisted; and, after some delay, the resignation was
accepted; thenceforth he devoted his entire services to the duties
connected with his attendance in Congress.
Mr. Jay retained his place as President of Congress nearly a year,
during which time he discharged its duties with a dignity, an urbanity, and an impartiality, which commanded universal respect. The
subject of the currency, and the emission of bills of credit, at that
time, attracted the serious attention of Congress. The depreciation
of the currency and the prostration of public credit were appalling.
Congress was literally bankrupt, and the means of continuing the
contest seemed no where to be found. Besides the sum of nearly
forty millions of dollars borrowed abroad, Congress had put in circulation bills to the enormous amount of $160,000,000, for the payment of which the public faith was pledged. This paper currency
had become absolutely worthless, so much so that it was literally
true, as was remarked at the time, that a cart-load of provision
could be purchased only with a cart-load of money. In this emergency, Congress, feeling the necessity of at once replenishing the
public treasury and restoring the public confidence, passed a resolution that no more bills should be issued than sufficient to make the




JOHN JAY.                         23
entire sum $200,000,000. A resolution was also passed calling upon
the states for supplies by state loans and taxes, and the President,
Mr. Jay, was directed to prepare an address to the people of the
respective states of the confederacy, in' regard to these objects. That
celebrated and justly admired paper, the " Circular letter from Congress to their Constituents," bears date on the 13th September, 1779,
and is signed by Jay as President of the Congress. It is a clear and
forcible statement of the condition of affairs, particularly with reference to the question of finance, and a most ardent and earnest appeal
to the people and the states, to stand by, assist, and sustain the honor
of the confederacy. Not the least noticeable feature in this admirable address is the bold and courageous spirit, the tone of calm,
well-grounded confidence as to the ultimate success of the struggle,
pervading it. Not for an instant does the author intimate a doubt as
to the ability of the states to maintain the independence they had so
boldly declared. "That the time has been," he remarks, "when
honest men might, without being charged with timidity, have doubted
the success of the present revolution we admit; but that period is
past. The independence of America is now as fixed as fate, and the
petulant efforts of Britain to break it down are as vain and fruitless
as the raging of the waves which beat against her cliffs." The appeal
to the people of the States to sustain the honor of the Confederacy,
to provide for continuing the revolutionary army in the field, and at
least to share with France the glory of achieving American independence, is eloquent, impassioned, and spirit-stirring; in short, is
worthy the classic and vigorous pen of John Jay. The following are
its closing sentences:
"The war, though drawing fast to a successful issue, still rages.
Disdain to leave the whole business of your defence to your ally. Be
mindful that the brightest prospects may be clouded, and that prudence bids us be prepared for every event. Provide, therefore, for
continuing your armies in the field till victory and peace shall lead
them home; and avoid the reproach of permitting the currency to
depreciate in your hands, when, by yielding a part to taxes and
loans, the whole might have been appreciated and preserved. Humanity, as well as justice, makes this demand on you. The complaints
of ruined widows, and the cries of fatherless children, whose whole




24              LIVES OF THIE CHIEF-JUSTICES.
support has been placed in your hands, and melted away, have doubtless reached you; take care that you ascend no higher. Rouse, therefore; strive who shall do most for his country; rekindle that flame of
patriotism, which at the mention of disgrace and slavery, blazed
throughout America, and animated all her citizens: determine to
finish the contest as you began it, honestly and gloriously. Let it
never be said that America had no sooner become independent than
she became insolvent, or that her infant glories and growing fame
were obscured and tarnished by broken contracts and violated faith,
in the very hour when all the nations of the earth were admiring, and
almost adoring the splendor of her rising."
Mr. Jay was now about to enter upon a different, and if possible,
a more arduous and responsible sphere of action. Tried in the revolutionary cause, and in every branch of legislative and executive
service, he had been found true, active, discreet, and courageous.
But a more difficult, and a new and untrodden field now lay before
him. He was called upon to enter upon it. It was no enviable post,
no tempting task; it promised few honors and less emoluments. His
private interests and his feelings prompted him to shun the employment. But his country demanded the sacrifice, and it seemed to
him the path of public duty. Jay did not hesitate as to the course
he should pursue. He accepted the Spanish mission. His instructions were received on the 16th October, 179, and four days after
he sailed, in company with the French Minister, M. Gerard, for
Europe. The object of this mission was two-fold. It was first to
draw Spain into the Confederacy against Britain, pursuant to a
secret clause in the treaty between France and the United States,
and secondly, to raise money either by a loan or guaranty from
Spain. It is highly probable that the latter was the more immediate and pressing object. It was, however, all the same to Jay. He
had enlisted in the service of his country from the purest, the most
elevated motives, and was ready to serve her wherever he could be
most useful.
Upon the threshold of his theatre of operations in Spain, the
American envoy encountered difficulties that would have discouraged
and baffled a man of less moral courage and resolution. He encountered too, annoyances, humiliations and petty vexations that




JOHN JAY.                        25
would have exhausted the patience of a man of a less equable temper of mind. But Jay bravely faced every difficulty, withstood all
things, endured, conquered all. On his landing at Cadiz, the Spanish government invited him to Madrid, but refused to recognize him,
in a formal character. "Pains were taken," he says in a letter to a
friend, " to prevent any conduct towards me that might savor of an
admission or knowledge of American independence."  It seemed to
be the policy of Spain rather to amuse than to aid the United
States. She desired to injure Great Britain, and would, therefore,
at the right time and on the proper occasion, render such assistance
to the revolted colonies as might accomplish that result, but such
aid was to be rendered only for a consideration. Certain concessions
were required to be made, among which was the right of the
United States to navigate the Mississippi. This Jay peremptorily
declined, acting on the advice given by Franklin, then in France:" Poor as we are, yet as I know we shall be rich, I would rather
agree with them to buy at a great price the whole of their right on
the Mississippi than sell a drop of its waters. A neighbor might as
well ask me to sell my street door." In this Franklin manifested
his accustomed good sense. Alluding to Jay's discouragements and
difficulties in Spain, he counsels him to continue " the even good
temper you have hitherto manifested."  "Spain," remarks the philosopher, in his usual sententious style, " owes us nothing; therefore,
whatever friendship she shows us in lending money or furnishing
clothes, &c., though not equal to our wants and wishes, is, however,
tant de gagne."
But, in the mean time, how were the hopes, the wishes, nay the
absolute expectations, prompted by inevitable necessity, of Congress
to be realized! Money must be had somewhere.     The supplies
from the states did not come in; the continental currency continued
rapidly to depreciate; the military chest. was empty.  Without
money, without resources, without credit, absolute bankruptcy was
staring them in the face.  In this emergency Congress took an
extraordinary step which nothing but desperation could have
prompted. Without the slightest surmise of what might be Jay's
reception or prospects of success in Spain, nay, without even
apprising him of the step taken, it was rescl ed to draw upon him




26             LIVES OF THE CHIEF-JUSTICES.
bills to the amount of half a million, payable in six months. The
Spanish government, after authorizing the acceptance of these bills
to the amount of a few thousand dollars, informed Mr. Jay that no
more would be paid unless America agreed to furnish ships of war as
an equivalent, or cede to Spain the sole right of navigating the
Mississippi, but offered to guaranty the payment of $150,000 in
three years, if Mr. Jay could effect such a loan. The conditions
imposed by Spain were rejected; Jay attempted to effect the loan,
but failed. In this emergency, he resolved upon a step of extraordinary boldness, it might be called rashness, a step, however, not
hastily determined on, but one which his calm judgment dictated,
and his reason approved. Without any present prospect of meeting
these demands as they fell due, but with unshaken confidence in
himself, his country, and its cause, he resolved to accept all bills presented to him, at his own risk. Prudence and caution were eminently characteristics of the mind of John Jay;:a wise and cool
discretion marked his general conduct in life, but when the crisis
occurred which demanded prompt, bold, and daring action, few men
were more ready to step. resolutely forward and assume the responsibility. In him, that caution which usually governed his actions, was
not the result of timidity; it tempered but did not impair the higher
qualities of a resolute and courageous mind.
The result of this bold and daring act fully justified his best
expectations. The first cheering intelligence he received, was the
arrival of $25,000 from Dr. Franklin, at Paris. This, however, did
not nearly equal the amount of his acceptances. Still he continued
to accept every bill that was presented, and still he pressed his
importunities upon the Spanish Government. At length in December, 1780, the sum of $150,000 was promised him; but the money
was not paid, and the American envoy was not yet relieved from his
financial embarrassments.
In April of the following year we find him writing to Dr. Franklin at Paris, and inclosing him a statement of the desperately hopeless condition of affairs. Not more than $35,000 of the Spanish
loan had been paid in. He had then outstanding acceptances to the
amount of $231,000, the largest portion of which must be paid in
two months. His situation, he says, was a cruel one. It was ren



JOHN JAY.                        27
dered more annoying from the fact that he had never received a
dollar of salary from America, and at one of the proudest courts in
Europe was obliged to contract debts and live on credit. Still, however, Jay bore manfully up, and continued zealously and faithfully his
labors at the Spanish court. By dint of almost superhuman exertions, he was enabled for a long time to meet his liabilities, and sustain the credit of the country. At length, in the month of March,
1782, the inevitable crisis came. The Spanish Government, after the
payment of the $150,000, agreed to guaranty to a banker the amount
necessary to liquidate the remainder of the bills accepted by Mr.
Jay; but the transaction was not completed, through the want of
faith, it is believed, of the Government itself; and Jay was subjected
to the mortification of seeing the bills protested, and his own and his
country's credit annihilated.
The misfortune, however, was soon retrieved. During the next
month Jay received from Franklin the following welcome letter:
"PASSY, April 22, 1782.
"DEAR SIR-I have undertaken to pay all the bills of your acceptance that have come to my knowledge, and I hope in God no more
will be drawn upon us but when funds are first provided. In that
case your constant residence at Madrid is no longer necessary. You
may make a journey either for health or pleasure, without retarding
the progress of a negotiation not yet begun. Here you are greatly
wanted, for messengers begin to come and go, and there is much talk
of a treaty proposed, but I can neither make nor agree to propositions of peace without the assistance of my colleagues. Mr. Adams,
I am afraid, cannot just now leave Holland. Mr. Jefferson is not in
Europe, and Mr. Laurens is a prisoner, though abroad upon parol. I
wish, therefore, you would resolve upon the journey, and render yourself here as soon as possible. You would be of infinite service. Spain
has taken four years to consider whether she would treat with us or
not. Give her forty, and let us in the mean time mind our own business.
I have much to communicate to you, but choose rather to do it viva
voce than trust it to letters.
"I am ever, my dear friend, yours most affectionately,
" BENJAMIN FRANKLIN."




28              LIVES OF THE CHIEF-JUSTICES.
The foregoing letter explains itself. Mr. Jay's mission to Spain
was about to end. It had been fruitless in respect to the proposed
treaty, although Congress, to the astonishment and mortification of
Jay, had some time before passed a resolution instructing him to
yield the claim to the navigation of the Mississippi. And he had
drawn up and presented a treaty to that effect. A longer residence
at the Spanish court was therefore unnecessary. He repaired to
France to act in conjunction with Franklin, Adams, Jefferson, and
Laurens, the commissioners appointed by the United States in negotiating a peace.
This commission was extremely distasteful to Mr. Jay, not on
account of the difficulty and responsibility attending it, but by reason
of what he conceived to be the humiliating conditions attached to
it. At the instigation of the French minister, Mr. Adams, who had
been appointed American plenipotentiary, had been instructed in
negotiating a peace, "to make the most candid and confidential
communications upon all subjects to the ministers of our generous
ally the King of France; to undertake nothing in the negotiations
for peace or truce without their knowledge or concurrence," &c.
Subsequently, at the requisition of the French minister, the additional commissioners were appointed, and the following added to their
instructions: "And ultimately to govern youlrselres by their (the
ministers of the King of France) advice and opinion."  It was in
reference to these instructions that Mr. Jay protested, in a dignified
letter to the President of Congress, in which, while reluctantly accepting the commission, he entreated to be relieved of it as soon as
practicable. The following are the concluding sentences of this
letter:
"Thus circumstanced, and at such a distance from America, it
would not be proper to decline this appointment. I will, therefore,
do my best endeavors to fulfil the expectations of Congress on this
subject; but as for my own part, I think it improbable that serious
negociations for peace will soon take place, I must entreat Congress
to take an early olpportunity of relieving me from a station where,
in character of their minister, I must necessarily receive and obey
(under the name of opinions) the directions of those on whom I
really think no American minister ought to be dependant, and to




JOHN JAY.                         29
whom, in love for our country, and zeal for her service, I am sure
that my colleagues and myself are at least equal."
Jay accordingly repaired to Paris, where he arrived on the 23d
June, 1782. Here he met Dr. Franklin, and these two mainly conducted the negotiations on the part of the United States. Jefferson
was detained in America; Adams did not arrive till the 26th of
October, after the preliminary articles were agreed upon between the
Americans and Mr. Oswald, the British commissioner; and Col.
Laurens reached Paris the 29th November, the day before the preliminary articles were signed.
It is not my design here to sketch the progress of this negotiation,
or to discuss its merits. It has become a part of the history of the
country, and is familiar to every one versed in the diplomatic events
of that period. We are doing but justice to Mr. Jay in claiming for
him a large share in the successful results of the negotiationresults upon which Jefferson himself in the warmest language congratulated him;- "The terms obtained for us," he remarks in the
confidence of a friendly letter, " are indeed great, and are so deemed
by your countrymen, a few ill-designing debtors excepted." Hamilton, also, highly complimented him. " The peace," he says, " which
exceeds in the goodness of its terms the expectations of the most
sanguine, does the highest honor to those who made it." These
terms, however, and this successful negotiation, were not achieved
without the most painful anxiety and difficult labor. England was
of course prepared to grant but few concessions to her revolted
colonies, and France, " our generous ally," had her own designs to
subserve, and was as dangerous to America in diplomacy as she
had been formidable to England in war. At the outset, too, Mr.
Jay had the misfortune to differ with his then sole colleague, Dr.
Franklin. The British commissioner, Mr. Oswald, had been authorized to treat with- any commissioner or commissioners appointed by
the thirteen colonies or plantations in North America. Jay regarded
the independence of the colonies as already a fact not to be controverted even by implication; and he refused to treat with the British
commissioner except upon terms of equality. The French minister,
Vergennes, urged a compliance; Franklin himself thought " it would
do;" but nothing could shake the firmness and sense of propriety




30              LIVES OF THE CHIEF-JUSTICES.
of Mr. Jay; he assured the British envoy that he would under no
circumstances take part in any negotiation in which the United
States were not treated as an independent nation; and at Mr. Oswald's request he drew the draft of such a commission as would be
satisfactory. A courier was dispatched with this to London, and
finally, on the 27th September, returned with a commission to Mr.
Oswald, authorizing him to treat with the commissioners of THE
UNITED STATES OF AMERICA.
The draft of the preliminary articles is in the handwriting of Mr.
Jay. Mr. Adams subsequently arriving in Paris, concurred in sentiment with him on all points, and assisted in completing the negotiations;-and finally, on the 30th November, 1782, they were
signed by the four American commissioners, and by Mr. Oswald on
behalf of the British Government. The success of the negotiation
wag handsomely complimented by the Spanish ambassador, the Count
Aranda, whom   Jay characterizes as the ablest Spaniard he had
met. Meeting Mr. Jay the next day after the preliminaries were
signed, he tapped him familiarly on the shoulder and remarked,
" Eh bien, mon amnie, vous avez tres bien fait."
While these general results, however, were highly flattering, and
greatly added to the credit of the ministers who had negotiated the
treaty, it is not to be denied that there was much dissatisfaction
manifested, and that too in the highest quarters, in regard to the
manner in which the business had been conducted. The conduct of
the envoys in violating their instructions, as was alleged, by proceeding in a separate and secret manner with respect to our ally,
France, and confidentially with respect to the British commissioner,
was severely criticised in Congress, and particularly by Mr. Mercer,
a member from Virginia, who ini a very warm speech denounced
their conduct in meanly stooping, as he remarked, "to lick the dust
from the feet of a nation whose hands were still dyed with the blood
of their fellow-citizens."*  Other members, though without using the
same severity of language, concurred in these sentiments. The
separate article in the treaty with Great Britain was peculiarly obnoxious to the charge of its being made in violation of our faith with
France, and it must be confessed that the complaints of the French
* Madison Papers, Vol. I. p. 390.




JOHN JAY.                           31
minister of the manner in which the American commissioners had
proceeded in that respect, without the advice and concurrence of the
Government of France, were not entirely without foundation.
Indeed, we find Mr. Hamilton himself, in this same debate in
Congress, while advising " coolness and circumspection," yet "disapproving highly of the conduct of our ministers in not showing the
preliminary articles to our ally before they signed them, and still
more so of their agreeing to the separate article."  Mr. Hamilton
also observed "particularly with respect to Mr. Jay, that although
he was a man of profound sagacity and pure integrity, yet he was of
a suspicious temper, and that this trait might explain the extraordinary jealousies which he professed."*
Jay's defence of his course of action in departing from his instructions was, in substance, that they had been given for the benefit of
America, not of France, and that America alone had a right to
complain.  " Moreover," he remarks in a letter to the Secretary of
Foreign Affairs, " as the French Minister did not consult us about
his articles, nor make us any communication about them, our giving
him as little trouble about ours did not violate any principle of
reciprocity."  John Rutledge, in the debate in Congress on this
subject, placed the defence of the Ministers on higher and bolder
grounds; they had done right, he maintained, in violating their
instructions, because "instructions ought to be disregarded when the
public good requires it."t
The definitive treaty of peace, though.the preliminary articles
had been signed in the autumn of 1782, was not executed until the
* Madison Papers, Vol. I. pp. 395, 396. This language of Hamilton is the
more remarkable, inasmuch, as, by profession, at least, he afterwards so warmly
approved the conduct of Mr. Jay. I have already quoted his complimentary
language in regard to the treaty. In a letter to Jay, a few months subsequent, he
says: "I have been witness with pleasure to every event which has had a tendency to advance you in the esteem of your country; and I may assure you, with
sincerity, that it is as high as you could possibly wish. All have united in the
warmest approbation of your conduct. I cannot forbear telling you this, because
my situation has given me access to the truth, and I gratify my friendship for
you in communicating what cannot fail to gratify your sensibility."
The debates in Congress, it will be recollected, were not public.
t See subsequent sketch. Life of Rutledge.




32             LIVES OF THE CHIEF-JUSTICES.
third of September, 1183. Mr. Jay thereupon went to England,
where he remained a few months, and then returned to Paris.
The Court of Spain had invited him to visit that country once more
and resume negotiations. This was before the conclusion of the
treaty, and Mr..Jay had determined to accept. But it seems the
state of affairs in Paris, and ill-health, induced him to abandon this
design. After the signing of the treaty he determined to resign his
commission, and return to his native country. His name having
been mentioned as a fit person to be appointed Minister at the Court
of London, he expressly declined such an appointment in a letter to
the Secretary for foreign affairs, refusing to be a competitor with
Mr. Adams for the place in question. His motives in resigning his
commission are best expressed in his own words, as found in a letter
written to Gouverneur Morris from Paris, on the 10th February,
1784.
"You suppose that ill-health induces me to resign.  You are
mistaken. It seldom happens that any measure is prompted by one
single motive, though one among others may sometimes have a
decisive weight and influence. Many motives induce me to resign;
but of those many there is one which predominates, and that is:When I embarked in the public service, I said very sincerely, that I
quitted private life with regret, and should be happy to return to it
when the object which called me from it, should be attained. You
know what those objects were, and that on the peace they ceased to
operate. To.be consistent, therefore, I must retire. The motive is
irresistible. Superadded to this, are the education of my son, the
attention I owe to the unfortunate part of my family, and the happiness I expect from rejoining my friends. Pecuniary considerations
ever held a secondary place in my estimation. I know how to live
within the limits of any income, however narrow; and my pride is
not of a nature to be hurt by returning to the business which I formerly followed. But professions of this sort are common, and facts
only can give unequivocal evidence of their sincerity."
Such were the views of Mr. Jay in returning to private life.
Expressed in the unreserved confidence of an intimate friendship,
their sincerity cannot be questioned. They were not, as is so often
the case, professions merely, intended to catch the public ear and




JOHN JAY.                        33
excite the popular applause; but they were actual sentiments, real,
living rules of action. He had quitted private life with regret, he was
about to return to it with pleasure, for the objects in view had been
attained. The same elevated motive which prompted Washington to
gird on his sword in the revolution, and to lay it aside when that revolution had been accomplished, had also prompted the actions of
Jay. Ten years before, he had. left the profession in which he had
been educated; during that time he had filled the highest offices in
the gift of his countrymen-Chief-Justice, President of Congress,
Plenipotentiary at foreign courts-and now with the calm hope of a
lofty purpose, and the serenity of a true philosophy, he expressed his
determination to decline further public honors, and resume the labors
of an arduous profession as the means of obtaining a livelihood for
himself and family. His pride, he declares, will not be hurt at this,
and he had learned to live " within the limits of any income." Passages like these beautifully illustrate the simplicity and purity of Jay's
character. They impress upon it the stamp of a high moral worth,
nay, of a true GREATNESS, which may suggest a comparison with the
best examples of Roman virtue.
On the 24th day of July, 1784, Mr. Jay arrived in New York.
He was received with the most distinguished marks of respect and
public confidence. The public authorities presented to him an address accompanied by the freedom of the city in a gold box. His old
friends hastened to congratulate him upon his safe arrival, and on
every side he received those marks of attention which are due to eminent worth and distinguished and successful public services.
It had been his intention, on his return from Europe, to resume
the practice of the law. Since his entrance in public life, ten years
before, he had been almost entirely withdrawn from the active duties
of his profession, yet he had never ceased to give his attention, when
not diverted by public employmeht, to matter connected with his
former practice at the bar. Even after his return from Europe his
time was frequently occupied in applications of this kind. In a letter
to Chancellor Livingston, after arriving at New York, he mentions
this as a reason why he is prevented from making him a visit. He
says he has so many applications about papers and business respecting
causes in which he was formerly concerned, that he is obliged to
3




34              LIVES OF TIIE C(1IEF-JUSTICES.
pass a fortnight or three weeks in New York. In the same letter
he alludes to his intention of again returning to the practice of his
profession.
This intention, however, was frustrated.  Congress, on learning
Mr. Jay's design of returning to America, tendered him the appointment of Secretary for Foreign Affairs, a place formerly filled by
Chancellor Livingston, but which by the resignation of the Chancellor had been vacant during the past year. Mr. Jay hesitated to
accept this appointment. The Legislature of his native State, in
the mean time, appointed him again a delegate in Congress. The
session was held at Trenton.  On the 23d of December Congress
adjourned to New York, which it was determined should be its future
seat; and having, in the mean time, granted permission to Mr. Jay
to select the clerks of his department, he accepted the office of Secretary for Foreign Affairs, and entered upon his duties early in the following year.
Mr. Jay remained in the discharge of the duties of this responsible position until after the meeting of the Convention which adopted
the Federal Constitution. Of that body he was not a member, it
being impossible for him at the same time to attend its deliberations,
and to discharge the duties of his present place. It is not necessary
here to detail his official services in the capacity of Foreign Secretary to the confederacy, or to dwell upon this portion of his public
career. It may, however, be remarked, that he resumed the ncgociations for a treaty with Spain, through the Spanish ambassador,
and prescribed to that functionary the forms and etiquette to be
observed in his introduction to Congress. The negociations resulted
in nothing. Mr. Jay, in a speech to Congress, recommended as the
basis of a treaty, the abandonment, for a specific number of years, of
the navigation of the Mississippi below the Southern boundary.  The
recommendation gave great, and perhaps, deserved umbrage to the
Southern members of Congress; but the northern members supported the Secretary, and voted down a resolution to terminate his
powers of negociation.
During this period, Jay was again solicited to oecome a candidate
for the office of Governor of New York, there having been some
discontent expressed at the course and proceedings of Governor




JOHN JAY.                        35
Clinton. He however again refused, mainly upon the ground of the
obligations he was under and the services he owed Congress, and
his unwillingness to exchange his present for a more honorable and
lucrative position, without the consent and sanction of that body.
In a letter addressed to his old friend, General Schuyler, he strongly
enforces this view, adding that if real disgust and discontent had
spread through the country, and a change had became not only
proper but necessary, he would have felt bound to make his personal
feelings yield to public considerations.
The necessity of a change in the articles of confederation, and the
establishment of a general government, was very early felt. Almost
all the public men of America concurred in this opinion. It is
scarcely necessary to add that Mr. Jay was among the very first to
express his sentiments upon the propriety and necessity of such a
change. It is well known, too, that his opinions, from the start,
were strongly federal.  With Hamilton and Adams he inclined
decidedly to centralization, and favored the establishment of an
energetic national government.  The federal system, as actually
adopted, and especially as it was subsequently construed by Jefferson
and Madison, seemed never to have harmonized entirely with his
views, or to have met his ideas of a perfect government, though we
find him warmly defending the new Constitution as a plan of government infinitely preferable, in all respects, to the old Confederation. It is not my purpose, however, to point out what might be
regarded as the errors of Mr. Jay's theory, or to criticise his speculative opinions on government. Those opinions were shared by some
of the wisest, ablest, and may we not add best, of the public men
of that day. That they were erroneous is evident from the workings of the admirable system which was subsequently adopted as a
sort of compromise between the extreme views of the ultra Federalists on the one hand, and on the other the doctrine of absolute
state sovereignty, and the more radical and democratic element of
popular government. It is, nevertheless, but doing justice to the
most high-toned Federalist of that period to say, that however erroneous may have been his views, and widely as we at this day may
differ from these doctrines of consolidation, and a strong central government, yet that these very doctrines, as society then stood, were a




36              LIVES OF THE CHIEF-JUSTICES.
progressive step in the science of government, and even a struggle
against a worse and more arbitrary system. At the present day, we
are too apt to lose sight of the fact, that the opinions, customs, and
habits of the monarchy had not yet lost their hold upon the people.
Washington himself, in a letter to Jay, before the meeting of the
Convention, uses the following language: "I am   told that even
respectable characters speak of a monarchical form of government
without horror. From thinking proceeds speaking; thence to action
is often but a single step. But how irrevocable and tremendous I
What a triumph for the advocates of despotism, to find that we are
incapable of governing ourselves, and that systems founded on the
basis of equal liberty are merely ideal and fallacious I Would to
God that wise measures may be taken in time to avert the consequences we have but too much reason to apprehend." These apprehensions of Washington were shared by Jay, and, it is believed, by
most of the prominent Federalists. They honestly and zealously endeavored to avert the threatened evil. The result was, that even the
plan of Hamilton, of an executive and Senate for life, was repudiated,
and the present Federal Constitution adopted.
Jay was neither a monarchist nor in favor of an aristocratic government. There is no evidence that his sympathies and inclinations
were not from the start in favor of pure republican, though not
strictly democratic institutions. It is clear, however, that he never
gave in his adhesion to the Jeffersonian construction of tie Constitution, or thoroughly comprehended what we have been accustomed
to regard as the true theory of democratic progress. Thus he says
in a letter to General Washington: "The mass of men are neither
wise nor good, and the virtue, like the other resources of a country,
can only be drawn to a point and exerted by strong circlmstances,
ably managed, or a strong governlment, ably administered."  So too
in regard to the great principle of free suffrage, he hesitated to trust
the masses; it was a favorite maxim with him, says his son, in writing
his memoirs, that those who own the country (i. e. the land-holders,)
should govern it.
The views of Mr. Jay upon the great question of the formation of
a national Constitution, were freely expressed in letters to his friends,
and show very clearly the force of his convictions in favor of a con



JOHN JAY.                        37
solidated and energetic central government. So early as the spring
of 1785, he writes to a friend as follows:
" It is my first wish to see the United States assume and merit
the character of ONE GREAT NATION, whose territory is divided into
different states merely for more. convenient government, and the
more easy and prompt administration of justice; just as our several
states are divided into counties and townships for the like purposes."
The same sentiments are repeated a year after in a letter to John
Adams at London, in which he expresses as one of the first wishes
of his heart, the desire "to see the people of America become one
nation in every respect; for, (he continues,) as to the separate
legislatures, I would have them considered, with relation to the confederacy, in the same light in which counties stand to the State of
which they are parts, viz., merely as districts to facilitate the purposes of domestic order and good government."
And in a long letter to General Washington, just before the Convention, he intimates the same thing: "What powers should be
granted to the Government so constituted," he remarks, " is a question which deserves much thought. I think the more the better; the
states retaining only so much as may be necessary for domestic purposes, and all their principal officers, civil and military, being commissioned and removable by the national Government." In the
same letter Mr. Jay, though expressing himself against a monarchy,
goes so far as to suggest a Congress divided into an upper and lower
house, the former appointed for life, and the latter annually; and a
Governor-General, limited in prerogative and duration. At the same
time, however, he never for a moment loses sight of the true basis
of popular rights, and the cardinal doctrine of republican government; for his letter closes with the declaration, that no alteration
in the government should be made " unless deducible from the only
source of just authority-THE PEOPLE."
In like manner the general principle of the Federal union, as subsequently adopted, was already a familiar idea to the mind of Jay,
for in a letter to Jefferson, at Paris, alluding to the weakness of the
confederacy, and the necessity for a better and a stronger union, he
thus sketches the main features of what he conceives to be the true
plan which ought to be adopted: " To vest legislative, judicial, and




38              LIVES OF THE CIIIEF-JUSTICES.
executive powers in one and the same body of men, and that too in
a body daily changing its members, can never be wise. In my
opinion those three great departments of sovereignty should be forever separated, and so distributed as to serve as checks on each
other."
These extracts will suffice to show Mr. Jay's opinions upon the
subject of the proposed Federal Constitution. It has been before
remarked that he was not a member of the Convention which
framed it, being prevented from accepting a nomination by the pressing nature of the duties of the office he then held and the necessity
of his attending the sittings of Congress. But no sooner was the
Constitution agreed upon and submitted to the States for ratification, than Jay stepped forward, its zealous and earnest advocate.
Public opinion was divided in regard to it. An active opposition
was at once manifested: or if not a direct opposition, an earnest and
determined effort to secure a larger concession to popular rights and
state sovereignty. Perhaps in no State in the union was the opposition more strenuous and determined than in New York. The city,
indeed, not then as now the metropolis of the country, but then as
now, the loyal and devoted friend of the American union, was decidedly favorable to the proposed plan. But a strong feeling existed
in the country in favor of a larger concession of popular rights and
a less extensive delegation of power to the General Government.
The people were jealous of their liberties, and hesitated to ratify an
instrument which called for a surrender of some of the most important powers of State sovereignty. Some were unconditionally and
unalterably opposed to the adoption of the proposed instrument;
others would adopt it conditionally, and others still, merely desired
its amendment in a variety of particulars. The ranks of the antiFederalists comprised all these different shades of opinions, and certainly the power of numbers seemed to be clearly with them. But
the weight of the intellect of the State was on the side of the Federalists, and prominent among them stood those distinguished advocates and champions of the proposed Constitution, Livingston, Hamilton, and John Jay.
The first decided impression made by the Federalists upon the
people was through the public press. Jay united with Hamilton




JOHN JAY.                            39
and Madison in writing and publishing that celebrated series of
papers, which has since been known by the name of the FEDERALIST,
the first number of which appeared in the month following the adjournment of the Federal Convention. Three such minds have been
rarely combined in the elucidation of any political system, or the
discussion of any question, whether practical or theoretical, of politics or government. It is not surprising then that this publication
should have impressed itself deeply upon the public mind, and exercised a wide-spread and powerful influence; nor that the Federalist
should have been ever since regarded by the American statesman
and jurist* as the most valuable commentary ever written upon the
American Constitution. In this production Jay does not lay claim
to an equal share with his illustrious coadjutors. He contributed,
it is believed, but five papers, four of which immediately followed the
opening number of the series. The remainder is the work of Hamilton and Madison.t'
The Federalist was followed by a pamphlet, written by Mr. Jay,
but published anonymously, addressed to the people of New York.
This pamphlet discussed with great candor as well as ability, the
three following questions, with reference to the proposed Constitution.
1. Is it probable a better plan can be obtained?
2. If attainable, is it likely to be in season?
3. What would be our condition, if, rejecting this, all efforts to obtain a better should prove fruitless?
* Chancellor Kent speaks of the Federalist in the following terms: "No Constitution of government ever received a more masterly and successful vindication.
I know not indeed of any work on the principles of free government that is to be
compared in instruction and intrinsic value to this small and unpretending volume
of the Federalist; not even if we resort to Aristotle, Cicero, Machiavel, Montesquieu, Milton, Locke, or Burke. It is equally admirable in the depth of its wisdom, the comprehensiveness of its views, the sagacity of its reflections, and the
fearlessness, patrotism, candor, simplicity and elegance with which its truths are
uttered and recommended."-1 Kent. Corn., p. 241, note.
t Mr. Jay would doubtless have been a larger contributor to the Federalist, but
for the occurrence of a serious accident, which interrupted his labors. While
endeavoring with other citizens of New York, under the lead of Col. Hamilton,
to quell a riot, he was struck with a stone on the temple, and taken up for dead.
He recovered only in time to write the sixty-fourth number of the series.




40              LIVES OF THE CHIEF-JUSTICES.
In the argument of these questions, Jay starts with the admission
that the proposed Constitution is imperfect.  It is not such as he
and the friends of a strong federal government desired. Their views
had been clearly expressed and eloquently advocated by Col. 1Hamilton upon the floor of the Convention, but these views had not been
adopted by that body. Unlike the opponents of the proposed Constitution, however, Mr. Jay avows himself prepared to submit, and
to yield his cordial and unqualified support to the projected plan of
union.  The first two questions as above stated are accordingly
answered in the negative. The third is discussed with an earnestness, a candor, and a power of argument, which leave no room to
doubt the author's thorough conviction of the truth of the propositions he advocates, and his entire confidence in the ultimate success
of the Constitution. Washington took occasion to compliment him
upon the " good sense, forcible observation, temper, and moderation
with which the pamphlet is written;" and Franklin deemed it advisable that Jay should give it additional weight by attaching to it
his name; but the habitual modesty of the author impelled him to
decline this suggestion, and prompted the characteristic reply: "If
the reasoning in the pamphlet you allude to is just, it will have its
effect on candid and discerning minds;-if weak and inconclusive, my
name cannot render it otherwise."
The assent of New York to the new Constitution was felt by the
Federalists to be an indispensable requisite to its success. The great
battle of the Constitution, as has been well observed, was fought in
New York. A Convention of delegates of the people was called by
the Legislature. The strongest men in the State were proposed as
candidates on either side. The election was held in April, 1188.
In the city of New York the Federalists carried it their own way.
Jay was put in nomination for that city and elected.*  He had for his
colleagues the Chief-Justice, Richard Morris, Chancellor Livingston,
Alexander Hamilton, James Duane, Richard Harrison, Judge John
Sloss Hobart, Isaac Roosevelt and Nicholas Low-an array of worth,
character, and talent, that has never been surpassed, if equalled, by
any delegation ever elected to represent that city.
In the country, however, the elections were strongly against the
* Out of a poll list of nearly 3000, he received all but about 100 votes.




JOHN JAY.                            41
Federalists. Most of the members returned were opposed to the
ratification of the Constitution, except upon condition, or with some
important amendments.     Nor where the anti-Federalists, as they
were called, deficient either in influence, activity, or ability. Prominent among the list stood the formidable name of that able and
experienced leader, Governor Clinton, who was elected President of
the Convention. Mr. John Lansing of Albany, afterwards for many
years Chancellor, a gentleman of sound judgment and cultivated intellect, as well as a most adroit and active parliamentarian,* Mr.
Melancthon Smith of Dutclless, one of the most fluent and ready
debaters, perhaps under all circumstances the best, next to Hamilton, in the house, Mr. Treadwell, Mr. Williams, and Mr. G. Livingston, may be mentioned as among the most prominent of the
opposition.
On the first day of the session Chancellor Livingston opened the
deliberations in an elaborate speech, at the close of which he moved
the consideration of the Constitution by sections, which was adopted.
The motion was a wise and discreet one, had there been, as was
alleged, a desire on the part of the majority to defeat the ratification entirely. It seems, however, from   the cause of the debates,
that this was not seriously intended, and that the design was merely
to secure the adoption of some very important amendments, together
with a declaration, or bill of rights, to be attached to the Constitution, a matter which had been singularly enough omitted.t    Of the
more important amendments desired were those in regard to taxa* Mr. Lansing had been a member of the Convention which framed the Constitution. He retired with his colleague, Mr. Yates, before the Constitution was
agreed upon, leaving Hamilton the sole representative from New York.
t This had been Jefferson's main objection to the Constitution. In a letter to
Washington, Mr. Jefferson, alluding to the charge (which he attributed to Hamilton) that he (Jefferson) had written letters from Europe to his friends to oppose
the Constitution, says: " The charge is most false. I approve as much of the
Constitution as most persons, and more of it was disapproved by my accuser than
by me, and of its parts most vitally republican. My objection to the Constitution
was the want of a bill of rights-Col. Hamilton's that it wanted a king and House
of Lords. The sense of America has approved my objection, and added the bill
of rights, and not the king and lords."
Mr. Jefferson was in favor also of making the presidential term six years, and
not renewable.




42              LIVES OF THE CHIEF-JUSTICES.
tion, one for increasing the number of the representatives, and one
moved by Mr. G. Livingston, and sustained with great ability and
force of argument by Messrs. Lansing and Smith, to authorize the
recall of a Senator by the State Legislature, and prohibiting his
re-election for the six years immediately succeeding the expiration
of his term. All these amendments, as well as the important one
embraced in the bill of rights subsequently moved by Mr. Lansing,
and which was substantially adopted and ratified by the requisite
majority of the States, and thus became a part of the Constitution,
were prompted not by hostility to a plan of union among the States,
or even to an energetic federal government, but by a well-grounded
jealousy of the encroachments of power, and a vigilant care for the
rights and liberties of the people. Much injustice has been done
the anti-Federalists of the Convention in this respect, and their views
are not at this day correctly understood. No one will question the
sincerity of Governor Clinton, who is regarded as standing at their
head; and Governor Clinton himself stated in the Convention, "I
solemnly declare that I am a friend to a strong and efficient government. But, sir, we may err in this extreme; we may erect a system that will destroy the liberties of the people. * * * Because
a strong government was wanted during the late war, does it follow
that we should now be obliged to accept a dangerous one? I even
lamented the feebleness of the Confederation," &c. &c.
Similar views were expressed by all the prominent members, inasmuch as Mr. Jay himself remarked in his place: " Sir, it seems to
be on all sides agreed, that a strong, energetic, federal government
is necessary for the United States."  Mr. Melancthon Smith, the confidential friend of Clinton, and one of the most ardent and uncompromising advocates of popular rights and State sovereignty on the
floor, and Mr. G. Livingston, who moved the amendment authorizing the State to recall their senators at pleasure, are both found
voting in favor of an absolute, and against a conditional ratification;
and if the name of Mr. Lansing is found in the negative, it is no more
than happened in Virginia, where the names of Patrick Henry and
James Monroe appear in opposition to that of James Madison, on the
final question of ratification.
That the majority of the Convention were in favor of some sort




JOHN JAY.                         43
of ratification, is apparent from the description given of the members
by Jay himself, in a letter to Washington:
"The leaders in opposition seem to have more extensive views than
their adherents, and until the latter perceive that circumstance, they
will probably continue combined.  The greater number are, I believe,
averse to a vote of rejection. Some would be content with recommendatory amendments; others wish for explanatory ones, to settle constructions which they think doubtful; others would not be satisfied
with less than absolute and previous amendments, and I am mistaken
if there be not a few who prefer a separation from the union to any
national government whatever. They suggest hints of the importance of the State, of its capacity to command terms, of the policy
of its taking its own time, and fixing its own price, &c. They intimate that an adjournment may be expedient, and that it might be
best to see the operation of the new government before they receive
it."
Mr. Jay, of course, was one of those who desired the absolute and
unconditional ratification of the Constitution. His influence in bringing this about was no doubt great, though from the sketch of the
debates it does not appear that he took any very active or prominent part in the discussions of the Convention. He was not a frequent speaker; indeed he was never a very ready and skillful debater. He was better adapted to the committee room, or perhaps
the chair, than the floor of a deliberative body. His strength, like
Mr. Jefferson's in that respect, lay rather in his pen than in oral
speech. As a pamphleteer and political essayist, he had few equals;
as a parliamentary orator he had many superiors, and some, too,
upon the floor of the Convention itself. The efforts of Mr. Jay cannot compare with the clear, calm, logical, comprehensive speeches
of Livingston, much less with the bold, rapid, impetuous harangues
of Hamilton, alike brilliant as declamations, and convincing as arguments.  These two were therefore regarded as in some sense the
parliamentary leaders of the Federalists; but Mr. Jay in point of
real influence was inferior to neither, and doubtless contributed as
much as any man in the Convention, by his well-directed efforts, and
the weight of his character and acknowledged ability, to bring these
deliberations to a successful issue. Occasionally too he mingled in




44               LIVES OF THE CHIEF-JUSTICES.
the debates, and expressed his opinions upon the more important
questions raised with freedom and frankness. He spoke upon the
question of representation in reply to Mr. M. Smith, and while
avowing himself in favor of a large representation, yet was satisfied
with the matter as the Convention had left it, and urged a general
acquiescence. He spoke also upon the important question of revenue, and the power of Congress to levy taxes, advocating the propriety of investing the General Government with the command of
the national resources, in opposition to the amendment proposed of
limiting this power by reserving to the States the right in certain
cases of regulating the supplies. The speeches of Mr. Jay are characterized by great simplicity and candor, as well as force of expression and cogency of argument.
On the 11th of July, Mr. Jay moved the unconditional ratification
of the Constitution, and that such amendments as might be deemed
expedient, ought to be recommended.   He was ably supported by
Chancellor Livingston and Chief-Justice Morris, and opposed by Mr.
Smith. On the 15th July, the latter gentleman moved, as an
amendment, that the Constitution ought to be ratified, on condition
that certain amendments specified, should be made. This was the
test question, and the serious struggle in the Convention now
occurred.* A proposition to adjourn, was made and voted down.
* Ten of the states had already adopted the Constitution before it was ratified
by New York. The order in which it was ratified by the respective states and the
votes thereon, are as follows:
Delaware,          December 3,        1787         unanimously.
Pennsylvania,      December 13,       1787         46 to 23.
New Jersey,        December 19,       1787         unanimously.
Georgia,           January 7,         1788         unanimously.
Connecticut,       January 9,         1788         140 to 128.
Massachusetts,     February 6,        1788         187 to 168.
Maryland,          April 28,          1788         63 to 12.
South Carolina,    May 23,            1788         149 to 73.
New Hampshire,     June 21,           1788         57 to 46.
Virginia,          June 25,           1788         89 to 79.
New York,          July 25,           1788         30 to 27.
North Carolina and Rhode Island came into the Union after the new government went into operation. The former ratified the Constitution on the 21st November, 1789; the latter not till the 29th May, 1790.




JOHN JAY.                         45
A resolution, by Mr. Lansing, reserving the right to New York to
withdraw from the union, in like manner passed in the negative.
The absolute ratification would probably have been also rejected if
the timely amendment moved by Mr. Jones had not been adopted~
changing the words on condition, into the words in full confidence.
Among the affirmative votes were, Mr. Smith, Mr. G. Livingston,
Mr. Williams, &c. In this shape the resolutions passed on the 25th
July, by a vote of 30 to 27, and New York assumed a place among
her sister states in the federal union.
The new government was to go into operation on the 4th March,
1789. Congress was summoned to meet on that day at the city of
New York, when the votes for President and Vice-President were
to be counted. On the appointed day, however, it was found that
a quorum was not in attendance, and the two houses adjourned.
The House of Representatives was the first to organize; the Senate
continued to adjourn from day to day for want of a quorum, until
the 6th of April. On that day a quorum    of both houses being
present, the electoral vote for President and Vice-President was
counted, when it appeared that George Washington, having received
the whole number of votes cast, sixty-nine,* was elected President,
and John Adams having received a majority of all the votes, was
elected Tice-President. Mr. Jay received the votes of Delaware
and New Jersey, for the Vice-Presidency.
The election of General Washington having been announced, and
he having signified his acceptance of the trust, it was thought proper
to make the necessary arrangements for the accommodation of the
President at New York. These arrangements were not immediately
completed, and in the mean time Jay wrote to Washington, tendering the hospitalities of his house, and with a sincerity and delicacy
that could not fail to be appreciated. "As the measures that were
in contemplation on this subject," he says, " would have given an
earlier invitation the appearance of a mere compliment, it was
* These comprised the electoral votes of ten of the States only. Rhode Island
and North Carolina had not yet adopted the Constitution, and New York did not
vote. At the opening of the Congress no member from New York appeared in
either house. Rufus King took his seat in the Senate on the 25th of July, and
Gen. Schuyler two days after.




46              LIVES OF THE CHIEF-JUSTICES.
omitted. Considering all circumstances, I really think you would
experience at least as few inconveniences with me as in any other
situation here. Your reluctance to give trouble will doubtless suggest objections. Apprised of this, we shall be particularly careful
to preserve such a degree of simplicity in our domestic arrangements
as will render you easy on that. In a word you shall be received and entertained exactly in the way which, if in your place, I
should prefer, viz., with plain and friendly hospitality." The completion of the public arrangements for the reception of Gen. Washington prevented his acceptance of this invitation. He arrived in
New York soon after, and delivered his inaugural address on the
30th April. At his request Mr. Jay continued to act as Foreign
Secretary until the arrival of Mr. Jefferson from Europe.
The Constitution provided that the judicial power of the United
States should be vested in a Supreme Court and in such inferior
courts as Congress might from time to time establish. At the first
session of Congress the organization of the federal judiciary engaged
the early and constant attention of that body. The judiciary bill,
organizing the new courts, approved the 24th September 1789,
will be more particularly noticed in the succeeding sketch of ChiefJustice Ellsworth, then a senator in Congress, from the State of
Connecticut. By its provisions a Chief-Justice and five Associate-Justices, were to constitute the Supreme Court of the United States.
On the very day of the approval of the Judiciary bill, the President sent in to the Senate the name of John Jay for the office of
Chief-Justice, and the names of the following gentlemen for the offices
of Associate-Justices of the Supreme Court;-John Rutledge, of
South Carolina; William Cushing, of Massachusetts; Benjamin H.
Harrison, of Maryland; James Wilson, of Pennsylvania; and John
Blair, of Virginia; who were immediately confirmed. Edmund Randolph was at the same time appointed Attorney-General. Mr.
Harrison resigned, and James Iredell, of North Carolina, was subsequently appointed in his place.
General Washington had been earnestly desirous of securing the
services and well-known ability of Mr. Jay in support of the new
government; and the position in which he was now placed was the




JOHN JAY.                          47
one which Jay himself had preferred, as most in accordance with
his tastes, his previous studies, and habits of life.*
The first term of the Supreme Court was held in New York, in
February, 1790. The Chief-Justice, and Justices Cushing, Wilson,
and Blair, appeared,t constituting a quorum. Very little seems to
have been done except the adoption of three or four rules of court,
one relative to the seal of the Supreme and Circuit Courts; another
in regard to the admission of attorneys and counsellors, and another
directing that allprocess of the court should be in the name of "the
President of the United States." At the next term, in August of
the same year, the commission of Judge Iredell was read, who was
sworn in, and took his seat, soon after which the Court adjourned.
No case of special importance seems to have been argued before the
Court until the August term, 1792, when the first motion was made
in the case of the State of Georgia vs. Braislford and others; and
the important case of Chisholm vs. Georgia, which will be presently
noticed, was also brought on for argument.
The Chief-Justice, in the mean time, regularly rode the circuit
twice a year, in company with one of his associates. The Eastern
circuit, to which he was assignd, comprised the New England States
and New York. The Judiciary bill provided that two Circuit Courts
a year should be held in each district, by two Justices of the Supreme
Court and the District Judge.
The Chief-Justice held his first circuit in New York, on the 4th
April, 1790, assisted by one of his associates and the District Judge,
James Duane, Esq., an eminent and able lawyer of that time.t  His
charge to the grand jury was carefully prepared, temperate, and
*Jay's appointment as Chief-Justice, in preference to Chancellor Livingston,
it has been intimated, was the real cause of the Chancellor's abandonment of the
Federal party, and his subsequent opposition to Jay's election. The authority for
this assertion, however, seems somewhat questionable. See Hammond's Political
History of SJew York, p. 107.
f Judge Rutledge did not take his seat. He resigned the next year, and the
commission of Thomas Johnson, bearing date 7th November, 1791, was read at
the August term 1792, when that gentleman took his seat. See following sketch
of Rutledge.
t See Sketch of Duane, by Hon. Samuel Jones, in 4th Vol. Documcntary History of.Jew York.




48             LIVES OF THE CHIEF-JUSTICES.
discreet, and withal thoroughly conservative. "It cannot be too
strongly impressed on the minds of all," he remarked, " how greatly
our individual prosperity depends on our national prosperity, and
how greatly our national prosperity depends on a well-organized,
rigorous government, ruling by wise and equal laws faithfully executed. Nor is such a government unfriendly to liberty-to that
liberty which is really estimable. On the contrary, nothing but a
strong government of laws, irresistibly bearing down arbitrary
power and licentiousness, can defend it against these two formidable
enemies."
Immediately after the close of this Court the Chief-Justice commenced his first circuit through New England, and was everywhere received with the most flattering marks of respect. In those
primitive days it was deemed no improper civility, or extraordinary
occurrence, to lavish upon the head of the federal judiciary the somewhat tumultuous demonstrations of popular applause.  Thus the
citizens of New Haven and the citizens of Portsmouth honored him
with "a public entry" into these towns; and even the staid people
of Boston were moved from their propriety in a similar manner.
A year or two later we find him feted and toasted at public dinners
-crossing the Hudson at Albany under the roar of artillery"attended for twelve miles on his journey by a body of cavalry"entering the village of Hudson on "Independence Day," amid the
ringing of bells and roar of cannon; and, finally, received by a deputation of citizens eight miles from New York, who carried him in
triumph into the bosom of his native city. But these latter demonstrations, it must be confessed, were political, and not in compliment
to his judicial character.
In April, 1791, the Chief-Justice, with Justice Cushing and the
District Judge, Duane, held the circuit at New York, and made a
very important decision, involving the jurisdiction and powers of the
Justices of the Supreme Court. Congress had passed an act to
regulate, among other things, the claims to invalid pensions. Under
this act certain duties were assigned to the Circuit Courts; but the
decisions of the courts thereon were made subject, first to the consideration and suspension of the Secretary of War, and then to the
revision of Congress. It speaks well for the independence and




JOHN JAY.                        49
firmness of the Supreme Court, even at that early day, to observe
the Judges standing up boldly to resist a constitutional encroachment. The Chief-Justice and his associates refused to perform judicially the duties imposed by the act.  They declared that, by the
Constitution, neither the Secretary of War, nor any other executive
officer, nor the Legislature itself, was authorized to sit as a court of
errors on the judicial acts or opinions of the Court. They regarded
the act therefore as appointing the judges commissioners merely,
which appointment they might accept or decline at their option. In
this case, as they desired to manifest in every proper manner their
respect for the national Legislature, they would execute the act,
not as a court, but in the capacity of commissioners. Similar views
were taken of the act in the Circuit Court of Pennsylvania by Justices Wilson and Blair, and Peters, District Judge, who united in
representing their opinions in a joint letter addressed to the President.
At the August term of the Supreme Court, 1792, a motion was
made by the Attorney-General for a mandamus, directed to the Circuit Court of Pennsylvania, commanding it to proceed on the petition of William Heyburn, as an invalid pensioner. The AttorneyGeneral made an elaborate argument upon the merits of the case and
the refusal of the Judges to carry the law into effect. The Court
held the case under advisement until the next term; but no decision
was ever pronounced, as Congress, in the mean time, provided for the
relief of pensioners by another law.
At this same term was brought on for argument the first motion
in the important case of the State of Georgia vs. Braislford et al.
The case presented several novel questions connected with the Constitution jurisprudence of the country, and is remarkable as being the
only case in which a special trial by jury has ever been had before the Supreme Court. The State of Georgia had passed an act
of confiscation, whereby it was claimed that the debt in controversy-a bond made by Kelsey and Spalding to Braislford and
others, whom it was alleged were aliens-had been sequestrated to
the State.  Notwithstanding their alienage and the act of confiscation, Braislford and his co-partners had brought an action on
the bond against Kelsey and Spalding in the Circuit Court of
4




50               LIVES OF THE CHIEF-JUSTICES.
Georgia.   The State of Georgia applied to be admitted to assert
her claim, but was refused, and judgment passed for the plaintiffs,
The State now filed a bill in equity and moved that all injunction
might issue to stay further proceedings in the Circuit Court, and
also to the Marshal of the Georgia district to stay money levied on
any execution that might have come to his hands.        This motion
was made and    argued by Alexander J. Dallas, of Pennsylvania,*
one of the most eminent, as he was decidedly one of the most
accomplished and able lawyers of that day, and was opposed by the
Attorney-General, Mr. Randolph.      The Court, after argument, delivered their opinions seriatim.
Justice Johnson was of the opinion that if the State had a rigcht
to the debt in question, it might be enforced at common law, and
that an injunction should not issue. Justice Cushing was of a similar opinion.  On the other hand, Justices Blair, Iredell, and Wilson,
thought that a temporary injunction should issue till the Court should
be enabled by a full inquiry to decide upon the whole merits of the
case; though the latter was inclined to think that the more proper
course would have been for Georgia to have sued out a writ of error, rather than have asked for an injunction. In these views the
Chief-Justice concurred, and accordingly an injunotion issued.
* ALEXANDER J. DALLAS was a native of the Island of Jamaica, and born on the
1st day of June, 1759. He was educated in Europe, and emigrated to Philadelphia in 1783. Two years after his arrival he was admitted to the bar. In a few
years he acquired a distinguished reputation as a lawyer; and on the organization of the Federal judiciary we find him engaged in nearly all the important
causes in the Supreme Court, and the criminal trials of these days. Mr. Dallas
was several years Secretary of the Commonwealth of Pennsylvania. He published the four volumes of the Reports which bear his name, containing, the earlier decisions of the Pennsylvania and the Federal Courts. lIe also published an
edition of the laws of Pennsylvania, which he illustrated with notes and references.
In 1801 Mr. Dallas was appointed by Mr. Jefferson District Attorney for the
Eastern District of Pennsylvania, and in 1808 he was invited to a place in the
Cabinet as Secretary of the Treasury. lie continued in the Cabinet until 1816, a
part of which time he performed the duties of Secretary of War. Returning
again to the bar, on his resignation of this office, he resumed an extensive and
brilliant practice, which was, however, interrupted the next year by an untimely
death. He died on the 16th January, 1817, in the 58th year of his age.




JOHN JAY.                        51
At the following term, February, 1793, the case was again brought
before the Court on a motion by the Attorney-General to dissolve
the injunction and dismiss the bill. Justices Iredell and Blair were
still of opinion that the injunction ought to be sustained, but the
rest of the Court coincided in the opinion delivered by the ChiefJustice that if Georgia had a right to the debt, it was a right to be
pursued at common law, and it was ordered that the injunction should
stand until the next term, when it would be dissolved, unless Georgia instituted her action at common law. An amicable action was
accordingly entered, in which an issue was made up whether the debt
and the right of action belonged to the State of Georgia, or to the
original creditors. This issue was brought to trial before a jury at
the February term, 1I94. The question was argued with great abil.
ity, and learning, by Dallas and Ingersoll for the State, and by
William  Bradford, who had been appointed Attorney-General in
place of Randolph, for the defendants. The cause went to the jury
under the charge of the Chief-Justice, who declared it as the unanimous opinion of the Judges, that the act of Georgia did not vest the
debt in the State at the time of passing it; that it was subjected
not to confiscation, but only to sequestration, and the owner's right to
recover it revived at the peace. The jury, under this charge, of
course, returned a verdict against the State, and the injunction was
accordingly dissolved.*
At the February term of the Court, 1793, held at Philadelphia,
the celebrated case of Chisholm Executors vs. Georgia, was brought
on for argument.t  This great case excited an unusual degree of attention, both on account of the novelty of the questions raised, and
the important political consequences that were supposed to be involved in the decision.  The doctrine of State sovereignty, and State
rights, was for the first time brought before the Court, for discussion.
The question was, whether a state was amenable to the jurisdiction of the Supreme Court, at the suit of a citizen of another state,
a question which iight, in the language of Judge Wilson, ultimately
resolve itself into another no less radical than this, " Do the United
States constitute a nation?"  Chisholm, a citizen of South Carolina,
* See this case reported, 2 Dallas, 403, 415. 3 Dallas, 1.
t 2 Dallas, 419.




52               LIVES OF THE CHIEF-JUSTICES.
had brought an action against the State of Georgia by service of
process upon the Governor and Attorney-General of that State.
Georgia refused to appear, and now the Attorney-General of the
United States moved that unless Georgia caused her appearanceAto
be entered by the next term, judgment should be rendered against
her by default, and a writ of inquiry issue.    No case of a similar
kind had yet been regularly brought before the Court for adjudication.
In a case against Maryland, the Attorney-General of the State had
voluntarily appeared.  In a case against the State of New     York a
motion had been made to compel an appearance on the part of the
State, but while the Court held the motion under advisement the suit
had been discontinued.*   The question was now brought up on the
motion of Mr. Randolph, the Attorney-General, who delivered a
lucid and most masterly argument, the analysis of whith, gives us
the highest opinion of the forensic talents, and profound legal attainments of that gentleman.    The State of Georgia refused to recognize the jurisdiction even so far as to appear upon the argument, but
presented by Mr. Dallas and Mr. Ingersoll, an eminent lawyer of the
Philadelphia bar,t a written remonstrance and protestation on behalf of the State.   Under these circumstances this important question was considered by the Judges, who, after advisement and careful
deliberation, pronounced their opirions seriatim.
* Oswald vs. State of New York, 2 Dall. 401. But see same case, 2 Dall. 415,
where default against the State was ordered to be taken at the next term, unless
appearance was entered.
t JARED INGERsoLL was at that time Attorney-General of Pennsylvania, a post
which he hell from 1791 to 1800, and again from 1811 to 1816. He was born in
New Iaven in 1750, was educated to the bar, and in 1773 was sent to London to
complete his education at the Temple. Mr. Ingersoll left England after the Declaration of Independence, and went to France, where he remained for some time,
after which he returned to Philadelphia to the practice of the law. His success
was immediate, and he was soon at the head of his profession, " in the midst," says
a judicious writer, "of the well-known formidable competition of a day when
the bar of Philadelphia by concession led the Union, and gave birth to a proverb
which has been handed down to present times." Mr. Ingeroll declined the -laiee
offered him of Judge, on the organization of the Circuit Court, for New Jersey,'cennsylvania and Delaware, in 1801. lIe presided, however, for a short time pn:'icedi.ng, his death, in the Iistrict Coert at Philadeilphia. In 1812 MAr. Ingersoll3 ws
acanidlLte for Vicc-Ir'skelnt. le died in 18'22 at tho age of s-evnt-.




JOHN JAY.                          53
The opinion of the Chief-Justice in this case, is by far the most
elaborate, perhaps the most able, delivered by him while on the
bench. It occupies over ten pages of the printed report of the case.
He makes no reference to cases, for the reason given by him that he
knows of none which are not distinguishable from this case. Unlike
the learned, and somewhat scholastic opinion of his associate, Justice Wilson, in the same case, he does not attempt an analysis and
comparison of other forms of government and social institutions, nor
does he undertake to discuss the opinions of writers on government
and the rights of man, or show the harmony of their views with the
principles which governed his own judgment. He discusses the
question purely as a practical, constitutional question; he examines
it in three separate propositions.  1st, In what sense Georgia is a
sovereign State?  2d, Whether suability is compatible with such
sovereignty?  3d, Whether the Constitution authorizes such an action against her?  To the first proposition he applies those strong
federal views and ideas of nationality, which he was always known
to entertain, going to the very opposite extreme of the doctrine of
state rights and state sovereignty.  A corporation was an aggregate
of individuals, and so was a state. The citizens of Philadelphia,
numbering forty thousand, in their corporate capacity, were suable
by a single citizen, and there was no reason why the fifty thousand
citizens, of Delaware should not be. He distinguishes, it is true,
between the case of a suit against the United States, and a suit
against a state, because the national courts being supported by the
arm of the Executive power of the United States, that power could
not be exercised against itself. The sovereignty of Georgia was
therefore not absolute, but subordinate to the nationality of the
United States. There was nothing incompatible with such sovereignty, in a public arraignment in a court of law at the suit of a citizen of another state, in an action of assumpit for the breach of a
contract; and moreover, the Constitution, to w-hich Georgia had acceded, authorized such a suit.*
*In reference to this decision Chancellor Kent observes in his commentaries:
"It is a little remarkable that the Court, in one of its earliest decisions, should have
assumed a jurisdiction which the authors of the Federalist had a few years before
declared to be without a color of foundation.




5j4              LIVES OF THE CHIEF-JUSTICES.
These views were not concurred in by Judge Iredell, who delivered a dissenting opinion. That able jurist considered the question
also in a Constitutional point of view, and as a question of strict
construction.  With great force of reasoning, and admirable precision and clearness of illustration, he analyzed the argument of the
Attorney-General, and arrived at exactly the opposite conclusion.
His opinion was, that no part of the existing law applied to this case;
and even if the Constitution would admit of the exercise of such a
power, a new law was necessary to carry the power into effect, and
that assumpsit at the suit of a citizen would not lie against a state.
One can scarcely arise from a careful perusal of this able opinion
without being sensibly impressed with the force of the reasoning of
the learned Judge, and the accuracy of his deductions;-lucid, logical, compact, comprehensive, it certainly compares very favorably
with that of the Chief-Justice, in every respect, and as a mere legal
argument must be admitted to be far superior.* The majority of
the Court, however, concurred with the Chief-Justice and granted
the motion.
This decision created much excitement in the public mind at the
time.  The subject was at once brought before several of the State
Legislatures, and an amendment of the Constitution proposed.
* JUDGE IREDELL may be regarded as one of the ablest of the many distinguished
jurists who have graced the bench of the Supreme Court. He had been a delegate to the Constitutional Convention of the State of North Carolina, and was
appointed to the Bench of the Supreme Court, in place of Mr. Harrison of Maryland, one of the originally commissioned judges, who declined. As a constitutional
lawyer, Judge Iredell had no superior upon the bench. His judicial opinions arc
marked by great vigor of thought, clearness of argument, and force of expression.
He did not always concur with the majorityof his brethren in their constitutional
constructions, and on such occasions rarely failed to sustain his positions by the
strictest legal, as well as logical deductions. In the interesting case of Ware vs.
Hylton, 3 Dallas 199-(referred to in sketch of Ch. J. Marshall)-his dissenting
opinion exhibits uncommon research, learning and ability. As a legal argument
it may be regarded as one of the best specimens that have been preserved of the
old Supreme Court. In the case of Wilson vs. Daniels, 3 Dallas 401, (referred to
in the subsequent sketch of Chief-Justice Ellsworth,) he also dissented, and his
views relative to jurisdiction on a writ of error were subsequently adopted by
the Court overruling the prevailing opinion in that case. Judge Iredell died in
1799, and was succeeded by Hon. Alfred Moore of North Carolina.




JOHN JAY.                        55
The advocates of state rights viewed the decision as a direct attack upon the sovereignty of the States. Georgia openly defied the
federal authority, and refused to enter her appearance. The Supreme Court, however, stood firm. At the February term, 1194,
judgment was rendered against the State by default, and a writ of
inquiry awarded. Where the controversy would have ended, it is
impossible to conjecture, had not the question been put at rest by a
speedy amendment of the Constitution, which declared that the jurisdiction of the Supreme Court should not extend to suits against
a state by citizens of another state, or subjects of a foreign state.
This amendment having been adopted, it was unanimously determined
by the Court, at the February term, 1798, that no farther jurisdiction could be exercised, in any case, past or future, wherein a
state should be sued by citizens of another state.
This is not a proper place, perhaps, to enter upon a review of that
series of exciting political trials which grew out of the foreign relations of the United States, and commenced during the latter period
of Mr. Jay's service on the bench. I may allude, however, to one of
the earliest and most celebrated of these trials,-that of Henfield,
an American citizen, tried on an indictment for enlisting in a French
privateer-as well on account of the extraordinary interest and novelty of the case itself, as for the purpose of bringing to view a most
important principle advanced by the Chief-Justice, with the direct or
tacit concurrence of nearly all his associates. The principle alluded
to is, that by the common law, independent of any statute, the
federal courts have power to punish offences against the federal
sovereignty-a doctrine which seems to have grown out of the political emergencies of the times, but which has been shaken by subsequent decisions, and it is believed, is now finally abandoned. This
doctrine is found laid down in a charge delivered by the Chief-Justice
to the first federal grand jury ever impannelled, at Richmond, in the
State of Virginia. He had been summoned, it appears, to hold this
Court for this express purpose, and his charge, though not delivered
to the particular grand jury by which Henfield was indicted, had
been prepared with great deliberation and care, for the purpose of
settling the law generally as applicable to this class of offenders.
This charge (which was deemed of so much consequence as to be




56              LIVES OF THE CHIEF-JUSTICES.
printed by order of the government, for the purpose of explaining
abroad the position of the United States,) very clearly and explicitly enunciated the principle that any American citizen who should
violate the neutrality recently proclaimed by the President, was to
be deemed guilty of a violation of the laws of the United States,
and liable to a prosecution in the federal courts, under an indictment at common law, for disturbing the peace; or, to quote the
very language of the Chief-Justice, "That the United    States
are in a state of neutrality relative to all the powers at war, and
that it is their duty, their interest, and their disposition, to maintain
it; that, therefore, they who commit, aid, or abet hostilities against
these powers, or either of them, offend against the laws of the United States, and ought to be punished; and consequently, that it is
your duty, gentlemen, to inquire into, and prevent all such of these
offences, as you shall find to have been committed within this
district."*
Under the rule of law thus laid down, and as subsequently applied
and amplified by Judge Wilson, in one of his learned and scholastic
discourses to the grand jury, two months after at Philadelphia,
Gideon Henfield, a citizen of the United States, was indicted for enlisting on the " Citizen Genet," an armed vessel, commissioned by
the French Revolutionary Government, then at war with England
and other European states.
We may read in our day with a feeling of astonishment the proceedings on an indictment, deliberately found, gravely argued, and even
sustained by the Court, on common-law principles, against a single individual, for an alleged offence against the law of nations, defined by
no statute of the United States, and which, if a crime, under the law
of nations, was precisely such an one as had been committed by Lafayette, Kosciusko, and Dekalb, in defence of American Independence.
The case, of course, at once aroused party spirit, and political feeling.
The fiercest invectives from both sides were launched by the respective partisans and opponents of the French republic at their adversaries. The English minister had demanded the arrest of Henfield;
the French minister, after his arrest, demanded his release. The
government was determined to sustain, in its full force, the procla* See the whole of this charge published in Wharton's State Trials, p. 49.




JOHN JAY.                             57
mation of neutrality, and for that purpose, as we have seen, the aid
of the Supreme Court had been invoked. It was not to be disguised that the contest would be formidable.      There was among the
American people a deep, and wide-spread sympathy with the young
republic of France, struggling in what appeared to be its death
agony, in a contest with that unhallowed      coalition which Europe,
under the lead of England, had raised to crush democracy in its
cradle.  The generous instincts of the American people were all for
freedom. The great mass of the people did not reason upon, perhaps did not comprehend, the question of policy involved in the declaration of neutrality, and they could not, therefore, be made to
understand the crime of Henfield in enlisting on a French
cruiser, under the tri-color flag of liberty.  Popular sympathy was
strong in his favor.   Brought to trial, all the formidable power of
the Court, consistent with a fair and impartial hearing of the case,
was arrayed against him, but all to no effect.  The well known ability of the Attorney-General, united with the legal acumen and forensic skill of the District-Attorney of Pennsylvania, Mr. Rawle,*
* WILLIAM RAWLE was born in Philadelphia in 1759, and was descended from
an old and respectable family of the early settlers. Having commenced his legal
studies in New York, he crossed the Atlantic, and was entered a student in the
Middle Temple. Returning to America he entered upon his profession, but found
his progress slow, so much so, that at one time he resolved to abandon it. Ten
years passed before he could be assured of success. As to that success, it is enough
to say, that for more than twenty years his business was very large, and he occupied, deservedly, a front rank at the Philadelphia bar. Mr. Rawle was much
engaged in the political trials of that period. lie never held but one public office,
that of District-Attorney of Pennsylvania, which he received at the hands of
Washington. His thoughts, habits, and feelings were all professional, and to his
profession he devoted the best and most valuable part of a long life. In 1794, Mr.
Rawle, together with Hamilton, accompanied George Washington into the western part of the State of Pennsylvania, for the purpose of quelling the insurrection
which there broke out. In this expedition he formed one of the family, and shared
the tent of Washington. Subsequently he was engaged in his official capacity, as the
representative of the government in the prosecution of these offenders. Mr.
Rawle was the author of a " treatise on the Constitution of the United States."
He was also a member of the commission appointed in 1830, to revise and digest
the civil code of Pennsylvania. He died in April, 1836. " His mind," says a
writer, " was eminently clear and discriminating, and his arguments and speeches
simple, strong, earnest and impressive." His amiability of temper, and kind and




58               LIVES OF THE CHIEF-JUSTICES.
was exerted in vain. In vain did the Court lay down with the most
scrupulous and minute exactness, the doctrines of law, as settled by
the  charge  of   Chief-Justice Jay.  The jury rendered a verdict
of "not guilty," and   "citizen  Henfield" retired in triumph amid
the plaudits and acclamations of the crowd.* The verdict was regarded by the popular party as a substantial triumph over the government, as well as the Court.   In some sense it was so, for it undoubtedly impeded the    vigorous execution of 4he proclamation of
neutrality, so far as the acts of individuals were concerned, though
it did not of itself impair the doctrines laid down by the ChiefJustice, and the federal courts.  Henfield was not acquitted on the
ground of any misdirection as to the law of the case, but on the
ground that the crime was not knowingly and wilfully committed, and
therefore, as Mr. Jefferson observed in a letter to Mr. Morris, then
in England, the jury did no more than the Constitutional authority
might have done.
The doctrine of a common law jurisdiction, in criminal cases,
seemed to be thus an established principle in the federal courts.
Chief-Justice Jay held the April session of the Circuit Court, in 1794,
for the Pennsylvania district, and had occasion again to apply the
same principle.   Joseph Ravara, a Consul of Genoa, was brought
to trial before him on an indictment for sending threatening letters
to the British minister, and others, with a view of extorting money.
Ravara's counsel, Messrs. Dallas, Lewis, t and Heatley, seem to
courteous deportment at the bar, are mentioned as among the most pleasing traits
of his character and manners.
* So elated was the French minister, Genet, at this triumph over the Court,
that he immediately issued cards to a grand dinner party to meet "citizen Henfield," and that patriotic personage was formally taken under the protection of the
French republic. It may be interesting to the reader to know that sallying out
soon after on a new excursion, he was captured by a British cruiser, and thus
"citizen Henfield" passes from the stage.
t WILLIAM LEWIS was born in Chester County, Pennsylvania, in 1751, on a
small farm, in a family whose stringent Quakerism, it is said, held a liberal, and
especially a professional education to be inconsistent both with common sense and
religious duty. His early education was therefore deficient. nor did he in after life
reach any considerable degree of literary attainment. His learning was almost exclusively confined to his profession, and though several times elected to Legislative
bodies, and for a brief period, under Washington's administration, holding the




JOHN JAY.                             59
have placed his defence mainly upon the ground, that the act complained of was not a crime at common law, nor was it made such by
any positive law of the United States.    Judge Jay, in his charge to
the jury, ruled otherwise, and sustained the indictment on common
law principles. The prisoner was convicted, but was afterwards pardoned on surrendering his commission and exequatur.
It only remains to be added, on this subject, that this doctrine, so
positively Asserted, and rigorously applied by the Chief-Justice and
most of his associates in the Supreme Court, was a few years after unsettled, and may now be considered as entirely overthrown.
The keen, bold, and penetrating mind of Judge Chase, gave it the
first blow on the trial of Worrall, at Philadelphia, in 1   98, when in
the face of the known opinions of all his associates, and as a very
judicious writer remarks, "with that quick perception of the spirit
of the Constitution, for which his clear intellect was so conspicuous " —he abruptly and boldly denied that the federal courts possessed any such common law Jurisdiction.*    Soon after, Judge Washoffice of District-Judge of Pennsylvania, yet it is as a lawyer, and mainly as an
advocate at the bar, that he is best and most favorably known. Lewis commenced
his practice in 1773, and though his business was interrupted during the Revolution, yet it again revived at the close of the war, and owing in some degree to his
supposed partiality for the royal cause during the Revolution, he at once succeeded
in obtaining a most extensive and lucrative practice among the Quaker loyalists
of Pennsylvania. BMr. Lewis was engaged in some of those celebrated criminal
trials which began to occupy the attention of the community, soon after Mr.
Jay left the bench. He was the leading counsel in the trial of the western insur,
gents, and it is said, that his pride of conscious superiority at the bar was so much
wounded by the request of the defendants' friends to admit Mr. Dallas as his associate, that he expressed himself with such asperity and superciliousness iu regard
to Mr. Dallas, as called out from the latter gentleman a challenge. This Lewis
accepted, but the difficulty was amic ably arranged, and both gentlemen afterwards
appeared as counsel for Fries, the first of the insurgents who was brought to trial.
Mr. Lewis continued at the bar, in the practice of his profession, with increasing reputation and unabated ability, until the time of his death, which occurred
on the 15th August, 1819.
* The District-Attorney, Mr. Rawle, was in the midst of his argument in reply to Mr. Dallas, discussing the question of jurisdiction in another point of view,
when to his utter dismay, and the astonishment of the whole bar, Judge Chase interrupted him with the question: "Do you mean, Mr. Attorney, to support this indictment solely at common law? If you do, I have no difficulty upon the subject;




60               LIVES OF THE CHIEF-JUSTICES.
ington, at the circuit, coincided in the opinion of Judge Chase.
He was followed by that eminent jurist, Chief-Justice Marshall,
who in more than one case, advances       the  same opinion; and
the question was finally put to rest by the decision of the Supreme
Court, in United States vs. Hudson,* in which there appears to be
no dissent from the opinion delivered by the Court, that a common
law offence, not specified by statute, is not indictable in the federal
courts.t
It was while the Chief-Justice and Judge Iredell, with the District
Judge of Virginia, were holding the Circuit Court at Richmond, in
1793, that the great case of Ware, Administrator, vs. Hylton and
others, relative to the right of British creditors to collect debts of
American citizens, contracted before the war, came on for trial.
This case called out a display of forensic talent, eloquence and learning, that hitherto had been without a parallel in the courts of Virginia, and placed the bar of that State, in the opinion of the federal
judges, according to Mr. Wirt's account, ahead of all others in the
Union.   The cause was     originally tried  in 1191, and was now
brought on a second time before the Chief-Justice and his associates.
Among the array of counsel for the defendants, the American debtors, were Patrick Henry and John Marshall.    Mr. Wirt, in his life
of Henry, gives a very graphic and animated description of this
celebrated trial, and a copious sketch of the speech of the great
Virginian orator, which is said to have required three days for its
delivery.  He was followed by Marshall, who brought the heavy
batteries of his logic to bear upon the breach made by the powerful
the indictment cannot be maintained!" The question, it was supposed, had been
long since put at rest, and beyond all hopes of a resurrection at the hands of the' metaphysical Virginia lawyers," as they were called by an eminent Federalist
of that day.
* 7 Cranch Rep. 32. See also U. S. vs. Coolidge, 1 Wheaton, 415.
t The principle is considered too well settled to be again shaken. Justice McLean in his late opinion in the Wheeling Bridge case, says: "It is admitted that
the federal courts have no jurisdiction of common law offences." And ChiefJustice Taney, in his dissenting opinion says: "It has been settled since the beginning of this government, that the courts of the United States, as such have no
common law jurisdiction, civil or criminal, unless conferred upon them by act of
Congress."-State of Pennsylvania vs. Wheeling Bridge Co., 13 Howard, 519.




JOHN JAY.                         61
eloquence of his associate.  Alexander Campbell and Col. Innis,
two of the most distinguished orators at the bar of Virginia, took the
floor on the same side-and the counsel for the plaintiff followed in
reply.*  Some idea of the effect of this magnificent exhibition of forensic skill, this grand and imposing display of eloquence, may be obtained from the impression left upon the mind of Judge Iredell, who
in his written opinion, after the argument, declares with more warmth
and enthusiasm than usually belongs to the unimpassioned judicial
mind, that the arguments in the case displayed an ingenuity, a depth
of investigation, and a power of reasoning, equal to anything he ever
witnessed, and that some of them had been " adorned with a splendor
of eloquence surpassing what I have ever felt before."t
Chief-Justice Jay presided for the last time at the term of the Supreme Court, in February, 1794. It was at this term that the issue
in the case of Georgia vs. Braislford, which I have already alluded
to, was tried. At the same term the case of Glass vs. The Sloop
Betsey,$ presenting one of the earliest questions raised in the Supreme Court on the subject of admiralty jurisdiction, was argued
and decided.   The Betsey was a Swedish vessel, the cargo of
which was owned jointly by Americans and Swedes. She had been
captured by the " Citizen Genet," a French privateer, and sent into
Baltimore. The owners of the Betsey filed a libel in the District
Court of Maryland, claiming restitution, and the captors (who had
undertaken to proceed before the French Consul for a condemnation
of the vessel) pleaded to the jurisdiction, that the federal courts had
no power to take cognizance in the case of a captured vessel, belonging to a foreign and neutral power.    After an elaborate and
exhausting argument, Chief-Justice Jay delivered the unanimous
decision of the court, wherein, without assigning any reasons, he
overruled the plea as insufficient, and reversed the decision of the
District Court. In respect to the admiralty jurisdiction claimed to
be exercised within the limits of the United States by the consuls
of France, it was determined by the court that no such power could
be exercised, inasmuch as none was reserved or conferred upon these
* See notice of this trial in the following sketch of Chief-Justice Marshall.
t See opinion of Judge Iredell in the Report, 3 Dallas, 275.
$ 3 Dallas Rep. 6.




62              LIVES OF THE CHIEFJUSTICES.
functionaries by the treaty. This important case established the admiralty jurisdiction of the federal courts in cases of prize and captures
on the high seas.
At the expiration of this term of the court, Judge Jay, as has been
mentioned, presided at the April session of the Circuit Court at Philadelphia, and it was during this session that Ravara was tried. About the
same time he was commissioned as Minister to England, and although
he accepted this appointment without vacating his seat on the bench, yet
he never afterwards acted in a judicial capacity. On his return to
America, in 1795, having in the mean time been elected Governor of
New York, he resigned the office of Chief-Justice of the United
States.
No portion of the public career of Mr. Jay has been the subject of
more unsparing criticism, than that upon which he was now about to
enter. A full history of it involves the discussion of political questions,
happily long since laid at rest, and revives the memories of party controversies, which for animosity and bitterness of feeling, have never
been surpassed in this country or Europe. Such a review would be
fruitless and unprofitable. Without entering upon it in detail, therefore, I shall allude to these events only so far as may be necessary, in
order to trace the history of the mission to England, and to sketch,
briefly, the part sustained in it by Judge Jay.
On the execution of Louis XVI., England joined the European
coalition, and commenced hostilities against the French republic.
Up to this period, and even long afterwards, and as late as the overthrow of the republic by Bonaparte, the popular feeling in America
was warmly enlisted on the side of France, and the prominent
republican leaders did not hesitate to express their sympathy with
the progress of popular principles in Europe.*  A class of public men
in America, however, like Mr. Pitt, Mr. Burke, and their adherents
in England, never could be brought to regard with satisfaction the
rapid progress of the democratic principle in Europe, as developed
in the startling drama of the French Revolution. At the head of
* At a public dinner in New York, in 1796, Chancellor Livingston gave the
following toast:
"May the present coolness between France and America produce, like the
quarrels of lovers, a renewal of love."




JOHN JAY.                            63
these stood the acknowledged chiefs of the Federal party, Hamilton,
Adams, and Gouverneur Morris,* and with these, doubtless, Jay
concurred in sentiment on this subject.    So strong was this bias
against the French Revolution on the mind of Hamilton, that with
all his clear, far-seeing  sagacity, and practical statesmanship, he
doubted whether it would be proper for the United States to receive
a minister from  the French republic, or whether, if a regent, pretending to represent the monarchy beyond the boundaries of France,
should send a rival ambassador, the United States ought not to
receive both!   This grave doubt Hamilton proposes in a letter to
Jay, but the question did not for a moment perplex the latter.  The
Chief-Justice entertained a too clear and just conception of international law, and of the principles which should regulate the intercourse of nations, to hesitate for a moment, and he accordingly
advises against receiving " any minister from a regent, until he was
regent de facto."t
The arrival of Genet in America, as minister from the French
republic, and the imprudent and exceptionable conduct of that personage, contributed to fan the flames of party spirit, and to open
wider the breaches between the Republicans and the Federalists.
Washington held with a firm and steady hand the reins between the
two factions, turning neither to the right hand nor to the left, but
* The journal of Gouverneur Morris-an acute observer, as well as an accomplished gentleman-during his stay in Paris, exhibits his strong conservative, perhaps we may say, monarchical, sentiments.  Mr. Morris had no faith in the
revolution from the outset. He sided with the King, on all occasions, against the
liberals. He sneered at Sieyes, disputed constantly, and always warmly, with
that " strong-minded woman," Madame De Stael, in her own drawing-rooms, and
almost quarrelled with Lafayette at his own dinner table. Mr. Morris denounced
the Constitution of 1791 as "a wretched piece of paper"-the same Constitution
which Lafayette regarded as the perfection of wisdom, and that liberal and enlightened British statesman, 5Mr. Fox, pronounced "the most stupendous and
glorious edifice of liberty which has been erected on the foundation of human
integrity, in any age or country."
t When this question was submitted by Washington to his Cabinet, Hamilton
and General Knox thought that the French minister ought to be received with
qualifications. The sound judgment of the President, however, acceded to the
reasoning of Mr. Jefferson, with whom thd Attorney-General, Randolph, agreed
that the French Minister should be received without any qualifications.




64              LIVES OF THE CHIEF-JUSTICES.
rigidly and impartially adhering to the principles of neutrality which
he had proclaimed, with the unanimous advice and assent of his
Cabinet, including Jefferson himself. It was a position of no ordinary embarrassment and difficulty. The Republicans were loud and
earnest in expressing their sympathy for republican principles in
Europe, and their desire for a closer union with France against the
natural enemies of liberty; the Federalists were no less earnest, nay
were bitter and vindictive, in their denunciations of jacobinism and
"French principles."  On the one hand tie British minister, Mr.
Hammond, uttered the complaints of his Government against the
United States for discriminating against British subjects and British
interests, in violation  of treaty stipulations; on the other, the
republican envoy, Genet, reproached the public authorities for the
ingratitude of America, and threatened to appeal from the Government to the people.
The conduct of England was such, indeed, as to cause deep and
wide-spread indignation among all classes of our citizens. England
had never yet carried out, either according to its spirit or its letter,
the treaty of peace. British troops still garrisoned several posts on
our frontiers, and within the jurisdiction of the United States.
American citizens were excluded from navigating the great lakes;
and Great Britain had neglected to make compensation for negroes
carried away by the British fleet, after the war.*  These violations
of the treaty of peace were admitted by Great Britain, but justified
on the ground that the United States had not fulfilled her engagements under the same treaty-a charge specifically made and urged
at length by Mr. Hammond, the British minister, but triumphantly
answered and conclusively refuted, in a very elaborate and most
able communication from Mr. Jefferson, the American Secretary of
State.t
Other causes of differences, and grievances growing out of the
belligerent attitude of England towards France, served, soon after, to
widen the breach between her and this country. Under the British
Orders in Council, the last of which authorized the capture by Brit-' Letter of Mr. Jefferson, Secretary of State, to Mr. Hammond, the British
minister, Dec. 15th, 1791, American State Papers, Vol. I. p. 179.
t See this correspondence in Vol. I. American State Papers.




JOHN JAY.                         65
ish cruisers of all vessels carrying supplies to any French colony, or
laden with its produce, numerous American vessels were seized and
sent to England for "legal adjudication."  The right of search was
claimed, and American sailors were torn from the decks of American
vessels, under pretence of their being British subjects. These and
other outrages committed upon our commerce and maritime rights,
for some time previous to the spring of 1194, justly excited the
indignation of the popular party, who loudly demanded of Congress
the adoption of vigorous and energetic war measures. It required
all the firmness and prudence of Washington, barely sustained in the
Senate, and with a small majority against the Federal policy in the
lower house, to stem the current of popular passion, and avert the
threatened storm. The excitement of party gradually reached such
a point as to overstep the bounds of propriety, and even decency;
and the clamors of mob violence invaded the habitation of the
President himself. According to the statements, perhaps too highly
colored, of Mr. Adams, "innumerable multitudes" surrounded the
President's house from day to day, "hurraing, demanding war with
England, cursing Washington, and crying success to the French
patriots and virtuous republicans."*
The Democratic party in Congress were in favor of prompt and
immediate action against England, looking mainly toward commercial restriction. Steps were taken to increase the military force;
an embargo was laid for thirty days on all vessels bound to foreign
ports; and a resolution was introduced to suspend commercial intercourse with Great Britian till indemnity should be made for the
losses sustained under her orders in council, and until she surrendered
the military posts agreeably to the treaty of peace.
It was at this moment, when the public mind was in the highest
state of ferment, and a speedy rupture seemed inevitable, that Washington determined to make another effort to reconcile the differences
between the two countries, and preserve peace. He resolved upon
sending a special envoy to England, and he selected for that purpose the Chief-Justice of the United States. As in the case of the
* The "innumerable multitudes" of Mr. Adams have been discredited, on
good authority. Perhaps the rest of the statement is also to be taken with considerable abatement.
6




66              LIVES OF THE CHIEF-JUSTICES.
Spanish mission, the appointment was one in no way to be coveted
or desired, and indeed was repugnant to all Mr. Jay's ideas of personal convenience. But in this as in almost every act of his public
life, he demonstrated that his conduct was governed by a high and
exalted sense of duty, and not by mere personal considerations; and
the rule of action which he had marked out for himself did not suffer
him to shun the responsibility or decline the appointment. " There
is here," he remarks in a letter to Mrs. Jay, on the 15th April, 1794,
" a serious determination to send me to England, if possible to avert
a war. The object is so interesting to our country, and the combination of circumstances such, that I find myself in a dilemma between personal considerations and public ones."  And again, a few
days after, "So far as I am personally concerned, my feelings are
very far from exciting wishes for its taking place. No appointment.ever operated more unpleasantly upon me; but the public considerations which were urged, and the manner in which it was pressed,
strongly impressed me with a conviction that to refuse it would be
to desert my duty for the sake of my ease and domestic concerns
and comfort."
The Chief-Justice was at this time holding the Circuit Court at
Philadelphia. The nomination was sent in, and acted upon by the
Senate, on the 19th April, 1794. It appears that the object of the
mission was distasteful to the party in opposition in the Senate.
Some of the members, among whom was Mr. Burr, refused to sanction it, on personal grounds, alleging the impropriety of the nomination itself. It was, however, confirmed by a decisive vote, 18 to 8.
Two days afterwards the House passed a bill, prohibiting, at the
end of a limited period, the importation of articles of British growth
or manufacture into the United States-a bill that of course would
have rendered Mr. Jay's mission nugatory. Its passage in the
Senate was only prevented by the casting vote of the Vice-President.
Within a month after his appointment Mr. Jay sailed from New
York, accompanied by his son, and Col. Trumbell, as Secretary of
Legation. Coming as the envoy of the peace party in the United
States, and charged directly to negotiate a treaty between the two
countries, he was of course received with every proper mark of
respect and attention. His negotiations and intercourse with Lord




JOHN JAY.                         67
Grenville, the Secretary of Foreign Affairs, were of the most friendly
and agreeable character; and so far as appears, tended to create in
each a mutual respect for the other. With this gentleman, mostly
in friendly and unreserved intercourse, and by oral communication,
Mr. Jay negotiated and finally settled upon the terms of that celebrated treaty, the promulgation of which in the United States
brought down upon the head of its author such a tempest of popular
indignation.
The terms of this treaty, and the policy or impolicy of its ratification, were fully discussed at that day, and with great vigor of argument.   Indeed it became for a time the dividing line of political
sentiment, upon which those two distinguished leaders, Jefferson and
Hamilton, representing the rival political parties of the country,
irrevocably separated. Hamilton, with his accustomed ardor, ably
defended the treaty in some papers under the signature of'Curtius'
and'Camillus.' Jefferson, in a letter to Governor Rutledge of South
Carolina, pronounced it an " execrable thing," and nothing more
than "a treaty of alliance between England and the Anglo-men of
this country, against the Legislature and the people." In a letter
to Madison, he says, alluding to Hamilton's pamphlet: "Hamilton
is really a Colossus to the anti-republican party; —without numbers,
he is a host in himself."  *  *  *  "In truth when he comes for,
ward there is nobody but yourself who can meet him." * * * *
"For God's sake take up your pen and give a fundamental reply to'Curtius' and' Camillus."'  This Mr. Madison did, and very ably replied to the argument of Hamilton.
As to the merits of the treaty itself, very few, I believe, at this
day, will undertake to defend it on principle, whatever may be
said of it on the score of policy. Mr. Jay declares, and doubtless with truth, that it was based upon the very best terms that
could have been obtained; yet Washington himself hesitated to
give it his approval, and it was only by a close vote that it escaped the ordeal of the Senate.    As a commercial treaty the
advantages were altogether on the side of Great Britain.  There
was no reciprocity in it.*  It was a treaty between a strong and a
* In this respect it compares very unfavorably with the treaty with France
subsequently negotiated by Ellsworth and his associates, which Hamilton and
some of the Federalists severely censured. See subsequent sketch of Ellsworth.




68                LIVES OF THE CHIEF-JUSTICES.
weak power, where the former insisted upon much and yielded little,
and where the latter agreed to receive that little in order to purchase the boon of future peace and security.      Great Britain, it is
true, agreed to surrender the military posts, but this she was already
bound to do by the treaty of peace twelve years before; she also
agreed to pay for property which her subjects had illegally captured,
after a failure to recover of the captors in due course of law. But
with the exception of these two points, she yielded little or nothing
that it was an object to her to retain. The treaty did not even
settle existing disputes, for while providing for the more easy and
certain collection of British debts in the United States, it gave no
indemnification for the negroes carried away by the British troops
at the close of the war; nor did it contain any concessions in regard
to the right of search and privateering claimed and exercised by
British armed vessels on the high seas.
Mr. Jay had been instructed by his government to procure a
direct trade with the West Indies in our own vessels, "of certain
defined burdens."    The part of the treaty     which was negotiated
under these instructions, is perhaps the most objectionable, and indeed was most warmly attacked at the time.            The   manner in
which they were carried out seems scarcely reconcilable with
their spirit, even if it actually came up to the letter. True, the
treaty did provide that England should open these ports, but only
to vessels, or, as a member of the House of Representatives* ex* Mr. Lyman. In the debate on the treaty in the House of Representatives,
alluding to its want of reciprocity, he remarks: " In Europe we are told we may
freely enter her (Great Britain's) ports. In the West Indies we are to sail in
canoes of seventy tons burthen. In the East Indies we are not to settle or reside
without leave of the local government. In the sea ports of Canada and Nova
Scotia we are not to be admitted at all, while all our rivers and countries are
opened without the least reserve. Yet surely our all was as dear to us as the all
of any other nation, and ought not to have been parted with but on equivalent
terms."
Mr. Madison spoke in opposition to the treaty in the same debate. He took
particular exceptions to that portion of it which permitted aliens to hold lands in
perpetuity. Other portions of the treaty he found equally objectionable. " With
respect to the great points in the law of nations comprehended in the stipulations
of the treaty," he remarks, "the same want of real reciprocity, and the same
sacrifice of the interests of the United States are conspicuous."




JOHN JAY.                          69
pressed it, " canoes" of the burthen of seventy tons;-and as a restriction upon this slight relaxation of the British colonial system,
and perhaps as an equivalent for it, the American minister consented
to insert the stipulation that all cargoes taken in such vessels should
be landed in the United States; and further that the United States
should ship no molasses, sugar, coffee, cocoa, or cotton to any other
part of the world.!    It may seem surprising at this day that so
shrewd and able a negotiator as Chief-Justice Jay should have consented, under any circumstances, and in view of any possible consequences, to accede to such humiliating restrictions.  The explanation is to be found in two facts: First, that a weak power always
treats under disadvantageous terms with a strong one. Second, the
disadvantage in the present case was increased because the negotiator was known to the British minister to be ardently desirous of
procuring peace, and the friendship and good will of Great Britain.
On the latter point the remarks of Prof. Tucker, in his Life of Jefferson,* are so discriminating and just, that no apology is necessary
in presenting the ieader with the following passage. While awarding to the distinguished negotiator of the treaty, in the execution
of his trust, the highest talents as well as zeal and patriotism, Prof.
Tucker remarks: " But the misfortune was, that Mr. Jay left the
United States under the firm belief, generally entertained by his
party, that peace with England, the prevention of a closer fraternity
with the French, and the continued ascendancy of the Federalists,
all depended on his making a treaty. Every thing then which could
interest either his patriotic or party feelings, (and neither were lukewarm,) was hazarded on this single step. The moral necessity under
which he acted was as well known to the British ministry, as it was
felt by himself; and they naturally profited by it to insist on every
thing which he could venture to give, and to concede nothing which
they could decently refuse."
Without entering upon a further review or criticism of this celebrated treaty, I dismiss the subject with the single remark, that
containing such a provision as that in regard to the West India
trade, and securing peace and friendship with England without corresponding reciprocal commercial advantages, it is not at all remark* Life of Jefferson, vol. I. page 507.




to              LIVES OF THE CHIEF-JUSTICES.
able that the treaty should have been exceedingly distasteful to the
republican party. Nor is it a matter of surprise that such men at
the south as Pinckney and Rutledge should have denounced it in
unmeasured terms; that Madison should have censured it in the
strongest language on the floor of the House of Representatives;
and that Jefferson himself, should for the moment have been ruffled in the serenity of his philosophic temper, and even have forgotten the ordinary courtesies' of language, in giving expression to his
dissatisfaction.*
A few days after Jay's arrival in America, the Senate assembled,
and the treaty was submitted by the President.  On the 24th of
June the Senate advised the ratification of the treaty, except the
article relating to the West India trade. Soon after, and while its
consideration was still before the Senate, it was made public by a
senator from  Virginia.t  At once the public was in a blaze of excitement, or, to use the language of the biographer of Mr. Jay, the
torch was applied to that mass of combustibles which had long been
collecting, and the intended explosion instantly followed. In a free
country no one has a right to object to the free and unrestrained
expression of public opinion;-but at the same time, while the people have a right to make known their sentiments without reserve in
regard to public men and public measures, this liberty ought not to
be abused, or be suffered to degenerate into licentiousness. On this
occasion, though unquestionably much might be excused to the intensity of public feeling, yet no one will undertake to justify the
violence of language and action employed by some of those who denounced the treaty. It was doubtless unpopular. It was such as a
large portion of the people of the country did not and could not ap
prove. But to look beyond the treaty itself, and attack the character and motives of the negotiator, was both illiberal and unjust.
Some few even of the Democratic societies, transcended the bounds
of decency as well as propriety, and talked of the GUILLOTINE, and
of bringing JOHN JAY to trial and justice;-while the mob did not
hesitate, in following the example, to parade the effigy of Jay through
* In one of his letters Jefferson calls the negociator of the treaty a rogue of a
pilot, who had run the vessel of state into an enemy's port.
t James T. Mason.




JOHN JAY.                          71
the streets, labelled, " Come up to my price, and I will sell you my
country;" and publicly to burn the obnoxious treaty in front of his
own house.* These details, however, are not necessary to be dwelt
upon, and it is gratifying to know that such proceedings were neither shared in, nor approved, by temperate and intelligent political
opponents, nor by the great mass of the Republican party.
Washington deliberated carefully and hesitated a long time before he signed the treaty. His habitual prudence, and his earnest
desire to preserve the peace of the country, finally overcame his
scruples and determined his conduct; and on the 15th August,
1795, he gave it his official sanction, and it thus became the law of
the land. The treaty, however, had still a narrow escape in the
House of Representatives the following spring, on the question of
passing the laws necessary to carry it into effect. The sum of
$90,000 was to be appropriated for this purpose, and a determined
opposition was manifested.  On a question taken in the House, it
was found that the vote was equally divided, and the chairman,
though opposed to the treaty, gave his casting vote in favor of its
execution. Soon after the necessary laws were passed, and the
treaty went into full effect.
It has already been mentioned that Chief-Justice Jay had been
elected Governor of the State of New York during his absence, and
had been put in nomination without even his knowledge or consent.
Three years before, whilestill holding his seat on the bench of the
Supreme Court, he had consented to be put in nomination for this
office against Governor Clinton. The election had been unusually
* It is but simple justice to say that the commission of outrages like these was
not confined to the Republicans. Similar acts were perperatedg by the other
party. Jefferson was subsequently treated in the same manner in New England;
and during the absence of Mr. Gerry in France, his unoffenging wife and family
were subjected to unheard of insults. " On several occasions," says Mr. Austin,
in his life of Gerry, " the morning sun shone upon a model of a guillotine erected
in the field before her windows, smeared with blood, and having the effigy of a
headless man. Savage yells were uttered in the night time to disturb the sleep
of this family of females, and the glare of blazing faggots suddenly broke upon its
darkness to terrify them with the apprehensions of immediate conflagration."
-2.Austin's Life of Gerry. 267.




72              LIVES OF THE CIIEF-JUSTICES.
close and animated. Mr. Jay received the greatest number of votes,
but owing to an informality in the vote of the counties of Otsego,
Tioga, and Clinton, these ballots had been rejected, and Mr. Clinton
was declared by the canvassers duly elected Governor by a majority
of 108. It was in this election that Mr. Jay's old friend, Chancellor
Livingston, left the ranks of the Federal party, and allied himself
to the Republicans, assuming an attitude of decided hostility to Mr.
Jay's election. The decision of the canvassers was the subject of
much dissatisfaction to the party which had supported Mr. Jay,
and an investigation was had thereon at the ensuing session of the
Legislature, but the house of Assembly, by a majority of only four
votes, resolved that the canvassers had not conducted themselves
with impropriety in the execution of their trust, and Mr. Clinton
accordingly continued to discharge the duties of the office. These
considerations doubtless influenced the party which had supported
Mr. Jay, to present his name again for the same office, and that too
without his knowledge, and before his arrival from Europe. Mr.
Clinton declined a re-election, and the Chief-Justice, Mr. Yates, was
selected as the opposing candidate. Jay was elected by a large
majority, and he was welcomed by his friends with this flattering
announcement on his arrival at New York, only two days after the
result had been officially ascertained.
The author of the Political History of New York thinks, and perhaps very correctly, that if the British treaty had been published
on the 1st of April instead of the 1st of July, Jay could not have
been elected Governor. In proof of this assertion he alludes to the
fact, that although up to that time the city of New York had been
almost unanimously Federal, and even DE WITT CLINTON, then a
young man just entering public life, had failed of an election to the
Legislature at the time of Jay's election, yet the very next year
EDWARD LIVINGSTON, a decided Republican, was elected to Congress
from that city. Be this as it may, it is certain that Mr. Jay came
into office with a very flattering popular vote. The elections had
generally been in favor of the Federalists, and the Governor found
himself supported by a decided majority in both branches of the
Legislature.  The late venerable Chief-Justice AMBROSE SPENCER,
Clarum et venerabile nomen, was the  same year elected to the




JOHN JAY.                        73
State Senate. Though then comparatively a young man, but thirty
years of age, his great talents were known and appreciated, and he
at once assumed a position of commanding influence in support of
the administration.  Besides Mr. Spencer, the Governor found himself sustained in the Senate by many other gentlemen of great ability and influence, among whom may be mentioned Gen. Schuyler,
Mr. Cruger, and Mr. Ph. Livingston.
The Legislature convened in the city of New York on the 6th of
January, 1796.  The new Governor, as was usual at that period,
met the two houses, and delivered a speech at the opening of the
session, which though neat and appropriate, contained nothing very
striking or remarkable. He declared his determination "to regard
all his fellow-citizens with an equal eye, and to cherish and advance
merit, wherever found."  If this declaration referred to the dispensing of executive patronage, it was a declaration which, however honestly intended, was not, and probably could not, have been consistently carried out.  Jay had been elected as a Federalist, and
opposed by the Republicans, and his fidelity to his political friends,
it is believed, has never been questioned. And although, in those
primitive days, offices were not yet regarded as the " spoils of victory," and removals for opinion sake were comparatively unknown,
yet when an office had become vacant by resignation or otherwise,
it was generally filled by the appointment of a political friend,
rather than of a political opponent. The course of Mr. Jay was no
exception to this rule. Indeed, it had heretofore been made a cause
of perhaps just complaint against him and Generals Hamilton and
Schuyler, that, through their controlling influence with the President, most of the appointments under the Federal Government had
been made from the ranks of the political opponents of Gov. Clinton
and the Republicans. Nor does it appear that Gov. Jay ever urged
upon the council of appointment the nomination of an anti-Federalist
to office on the ground of superior merit alone.
The answer of the two houses to the Governor's speech was
highly laudatory, going even beyond the bounds of ordinary compliment. "The evidence of ability, integrity and patriotism," it says,
" which have been invariably afforded by your conduct in the discharge of the variety of arduous and important trusts, authorize us




74                LIVES OF THE CHIEF-JUSTICES.
to anticipate an administration conducive to the welfare of your
constituents."  The word "invariably" was not contained in the
original draft.  It was inserted by the Senate, on motion of Mr.
Spencer, by a vote of 11 to       6, "thus repelling in unequivocal
terms "-remarks the son and biographer of Mr. Jay-" the calumnies with which the opposers of the British treaty had found it convenient to assail the minister who negociated it."    Such, no doubt,
was the object of Mr. Spencer's motion, and so far as a party vote
in a legislative body may be said to reflect public sentiment, it was
successful. It may be thought surprising that Mr. Spencer himself
did not always continue to yield the same unqualified approbation to
Mr. Jay's political actions. Before the close of the next gubernatorial term, we find him  enrolled with the Republicans, and in connection with De Witt Clinton and another opposition member of the
Council, sending in to the Assembly a paper, in which the character
and conduct of the Governor are criticised with much asperity.
This disagreement grew out of the contest between the Governor
and Messrs. Clinton and Spencer, then in opposition, and members
of the council of appointment, relative to the right of nominations
to office-the Governor claiming an exclusive right of nomination,
and the council, which consisted of four Senators, three of whom
were in opposition, claiming a concurrent right.*
* From this it appears that notwithstanding Gov. Jay's declaration in his opening speech, his practice was uniformly to dispense official patronage among his
political friends. Mr. William Jay, in his memoirs of his father, does not, indeed,
claim that the Governor ever appointed anti-Federalists to office, but regards the
fact that he made no removals, as evidence of the sincerity of his intention " to
dispense his patronage for the good of the whole, and not of his friends." The explanation, it must be confessed, is not entirely satisfactory. It ought not, certainly,
to be claimed as a peculiar merit in Governor Jay, that he declined to make
removals, at a day when-as Mr. Barnard remarks in his able discourse on ChiefJustice Spencer-removal from office on account of political opinions, was unknown. Nor, can it be regarded as a fulfilment of the declaration made by the
Governor, of his intention to " advance merit wherever found." In declining to
make removals, Gov. Jay is entitled to no more, and no less, credit than his distinguished opponent, Gov. Clinton, who, on being again reinstated in office, says
Mr. Barnard, utterly refused to give the practice the sanction of his name, and
even caused his solemn protest to be entered on the journals of the Council,
against some of the removals.




JOHN JAY.                        75
It was during this year that the purpose of Washington to decline
a re-election and to retire to private life, became known. Jay had
been one of his warmest personal and political friends. No man in the
State of New York, not even Hamilton, enjoyed in a higher degree
the esteem  and confidence of the first President. In his annual
speech to the Legislature, at their meeting in November, 1796, the
Governor, alluding to the fact of Washington's purpose to retire
from public life, delivered a very beautiful eulogium upon the character of that great and good man. It may here be mentioned as an
instance of the friendship and unreserved confidence existing between
them, that General Washington submitted to Jay and Hamilton the
draft of his celebrated farewell address, for revision and approval.
The subject has excited some attention, from the fact of a copy of
this address having been found in the hand-writing of General Hamilton, from which circumstance its authorship was attributed to him.
Many years after, Governor Jay, in a letter to a friend, explained the
circumstance as follows: Washington sent the draft to Hamilton
with a request that he would confer with Jay on the subject, and
suggest any alterations that might occur. The conference took place
at the house of Jay. Several additions and modifications were proposed, and, at the suggestion of Jay, instead of interlining and mutilating the original draft, Hamilton copied it entire, incorporating into
it the proposed alterations. This was sent to General Washington,
Hamilton probably retaining the copy, which was subsequently found
among his papers.
The vote of the State of New York, at this Presidential election,
as is well known, was cast for Adams and Pinckney, for President
and Vice-President of the United States. That remarkable man,
whose name has become a sinister omen in the political history of
the country, AARON BURR, was sustained by the Republicans for VicePresident, with Mr. Jefferson for President. Burr was then a member of the Senate of the United States. His term of service expired
in the spring of 1797, and the Legislature being strongly Federal,
General Schuyler was elected to succeed him. Burr returned to New
York and immediately offered himself as a candidate for member of
Assembly. The Republican ticket was elected in the city by about a
thousand majority, and at the ensuing session Colonel Burr appeared




76              LIVES OF THE CHIEF-JUSTICES.
in the Legislature with DE WITT CLINTON,* as one of his colleagues
from New York, to organize a vigorous and active opposition to the
administration of Governor Jay.
This session of the Legislature commenced at the city of Albany,
on the 2d of January, 1798. The speech of the Governor was mild
and judicious, avoiding any allusion to political rnatters, and being
confined mainly to the domestic affairs of the State. It was well
received by both houses, and a respectful answer returned. Nevertheless, a vigorous opposition was manifested in the Legislature, under
the lead of Burr and other prominent Republicans, although no measure of any great political importance was discussed, except the bill
to abolish slavery in the State, which passed the Assembly, but was
lost in the Senate-a bill, it must be added, which Governor Jay
warmly approved.
The first term of the Governor was drawing to a close. The election was to take place in April, of this year, and the campaign was
carried on with great vigor during the winter session, outside as well
as in the Legislature. The Republican party had been gradually
gaining strength, and was directed by able and resolute leaders. It
had life, activity, energy, character, talent, and withal the popular
sympathy to invigorate and sustain it. It marshalled itself under
the lead of those experienced and veteran statesmen, Chancellor
Livingston and George Clinton. It availed itself of the indefatigable
exertions of that able, adroit, clear-headed, and not over-scrupulous
politician, Aaron Burr. It numbered among its younger members,
such men as Edward Livingston, whose name and reputation have
since become national, De Witt Clinton, whom General Hamilton, it is
said, at one time thought would become a Federalist, and Ambrose
Spencer, who had just enrolled himself in the Republican ranks.
With such an array of influence, energy, and talent on its side, the
Republicans might well hope for success; but the Federal party stood
firm, and indeed seemed invincible so long as it was sustained by the
exalted character and wide-spread personal popularity of John Jay,
and guided by the colossal intellect of Alexander Hamilton.
The election was held in April.  Each party selected, perhaps,
* This was the first appearance of De Witt Clinton in public life. He was then
about 28 years of age.




JOHN JAY.                         77
under all the circumstances, its strongest candidate. The Republicans supported Chancellor Livingston; the Federalists again rallied
around Gov. Jay.    We are told by his son that he would gladly
have retired from the contest. It was peculiarly disagreeable to him
to have for a rival and opponent, his old friend and relative, the
Chancellor; but, remarks Mr. William Jay, " his fellow-citizens still
claimed his services, and he resolved not to abandon the helm when
the lowering clouds portended a storm.'
The result is well known. Gov. Jay was elected, and by a large
majority.* The Federalists were every where successful, and carried
the Legislature.  But, from the smoke of the contest, some of the
opposition leaders emerged triumphantly, and among these Spencer
and De Witt Clinton were elected to the Senate, and to the Assembly, that name of evil omen to the Federal party, Aaron Burr!
The Governor called the Legislature together in an extra session
in August, of this year, for the purpose of making preparations for
the immediate defence of the State, in prospect of a war with France,
resulting from the unsuccessful mission of Messrs. Pinckney, Gerry,
and Marshall.  For the moment, says the biographer of Governor
Jay, the voice of faction was drowned in a loud and vehement burst
of indignation against the insulting cupidity of the French Directory,
and the Legislature unanimously voted a patriotic address to the
President, pledging the support of the State of New York in his
endeavors to maintain the rights and honor of the nation. An act
was passed appropriating money for the erection of fortifications
and the purchase of arms, at the discretion of the Governor. Little
of a party nature, however, transpired, except the election of a
United States Senator, James Watson, a Federalist, in place of Gen.
North, who had been temporarily appointed to fill a vacancy.
At the regular session, commencing on the 2d of January, 1799,
the strife of parties again commenced. Under the vigorous and
skillful opposition of Burr, and others in the Legislature, the Republicans were fast organizing that powerful party which two years later
carried the State, and placed Jefferson in the presidential chair.
This seemed now to be the main object entertained by the opposition
* His majority was 2,380. Two years before, the whole number of legal voters
in the State was returned at 66,000.




78              LIVES OF THE CHIEF-JUSTICES.
in New York, at least of all save one —for who shall undertake to
fathom the mysterious and inscrutable mind of Aaron Burr?-and
every effort was directed to this end.  Burr himself co-operated
with the other Republican leaders, and brought to the common cause
all the craft of his singularly subtle intellect, and the tact of a
wily and experienced politician.
Matters, however, did not appear very auspicious for the Repub
licans. The elections in April, 1799, were decidedly against them.
Burr, himself, at the head of the Republican ticket for the Assembly
in New York, was defeated, and the Legislature in both its branches,
still remained with the administration.  It was at this session, in
January, 1800, that the Governor, in his opening speech to the Legislature, had occasion to allude to the recent national affliction which
had occurred in the death of Washington. His language, as usual,
was chaste, beautiful, and strictly appropriate.  "You will, I am
persuaded," he said, "join with me in regretting that the topic
which naturally rises first into view on this occasion, is the afflicting and unexpected death of that virtuous and great man who, both
in the field and in the cabinet, in public and private life, attracted
such an uncommon degree of merited esteem, confidence, and admiration.  His memory will be cherished by the wise and good of
every nation; and truth triumphing over her adversaries, will transmit his character to posterity in all its genuine lustre." How fully
and accurately has the prediction been fulfilled!
The Legislature cordially responded to these sentiments and adopted
resolutions suitable to the occasion.
Both the present house of Assembly and the Senate, as has been
observed, were strongly Federal.  The next Legislature were to
choose electors of President and Vice-President of the United States.
It was supposed by the Federalists that they would carry a majority
of the members of Assembly at the election in April, 1800, and
thus secure all the presidential electors.  Accordingly on a bill introduced at this session to divide the State into election Districts,
and provide for the choice of presidential electors by the people in the
respective districts, the Assembly divided upon this important question, the Federalists opposing and the Republicans sustaining the
measure. This bill was finally lost by a party vote, 55 to 47. The




JOHN: JAY.                         79
fact it is necessary to state in order properly to appreciate a circumstance which will be presently alluded to, and which may be regarded
as one of the finest and most characteristic passages in the life of
Governor Jay.
The Federalists, however, were sadly disappointed in their hlpe
of carrying the election in this memorable spring of 1800. rhe
great tact and superior management of Colonel Burr, were peculiarly
manifested in the selection of the Republican candidates in the city
of New York, where the year before there was nearly a thousand
Federal majority. Somewhat unpopular himself, from his connection
with a local question,* he was not a candidate for the city, but
was nominated and elected in the county of Orange. The New
York nominees, thirteen in number, were men who, says Mr. Hammond, "in wealth and talents, and weight of character, were probably greater than any other equal number of Republicans then to be
found in the city, or perhaps, any other equal number of citizens."
Among the   may b m   mentioned Governor Clinton, Brockholst Livingston, (afterwards Judge of the Supreme Court,) Gen. Horatio Gates,
Henry Rutgers, and Col Burr's particular friend and adherent, John
Swartwout. The result was a decisive Republican triumph. A
large and controlling majority in the Assembly, and the reduction of
the Federal majority in the Senate to seven, gave the choice of the
twelve presidential electors to the Republicans, and it was supposed
insuring the election of Mr. Jefferson by a majority of three in the
electoral college.
The Federalists now saw their mistake in defeating the bill to divide the State into electoral districts; for, the choice of Federal
electors from only a few of the districts, would, it was thought, entirely change the aspect of the presidential election. The bill, however, had been opposed and defeated, not strictly as a political measure, but on constitutional grounds, as stated at the time by that able
and distinguished lawyer, John V. Henry, the Federal leader in the
Assembly, and there appeared, therefore, no remedy.
In this emergency, as soon as the result was known, the bold and
ilnpetuous mind of Hamilton conceived a project to defeat the elec* The charter of the Manhattan Company, which, after it had passed the Legis.
lature, was found to contain banking powers.




80              LIVES OF THE CHIEF-JUSTICES.
tion of Mr. Jefferson, which may be properly characterized as a
mean between a daring coup d'etat, and a questionable political
finesse. It was nothing less than the immediate convening of the
existing Lcgislature, in an extra session, for the purpose of passing the
very bill to divide the State into electoral districts, which his own
friends in the Legislature had defeated on constitutional grounds!
This proposition he actually made, and urged with much earnestness
in a letter to Governor Jay, dated May 7th, 1800.*  " In times like
these," remarks the writer, "it will not do to be over scrupulous.
It is easy to sacrifice the substantial interests of society, by a strict
adherence to ordinary rules." And again, " I shall not be supposed
to mean that anything ought to be done which integrity will forbid;
but merely that the scruples of delicacy and propriety, as relative to
a common course of things, ought to yield to the extraordinary nature
of the crisis."
But John Jay did not so understand the code of political ethics.
Not only was he guided by " scruples of delicacy and propriety,"
but by a sense of justice and of right, that never suffered him to
sacrifice a principle to a temporary expediency, or swerve a hair's
breadth from the line of what he regarded as his duty. He kept his
official robes as Governor of the State, pure and unsullied, as he had
preserved the judicial ermine.  The Chief-Magistrate of New York
was no less upright and single-minded in his official actions, than the
Chief-Justice of the United States had been. His errors, if he committed any, were errors of position, not of design-errors resulting
from opinion, which every liberal mind can understand and tolerate,
and not errors knowingly committed. In the present case, it appears
that even the highest political considerations could not induce him to
adopt a course of questionable propriety. He shunned the very appearance and suspicion of evil, and avoided even a constructive
wrong. The letter of Hamilton was found among his papers endorsed " Proposing a measure for party purposes which I do not think
it becomes me to adopt."
Governor Jay, as has been remarked, was no lukewarm politician;
he believed, and no doubt with all the sincerity of a thorough convic* This letter is published at length in the life of Jay, by his son, but without the
signature of Hamilton, vol. I. page 412.




JOHN JAY.                        81
tion, that the ascendancy of the Republican party in the State and
nation was dangerous to the political institutions he had assisted in
establishing. Yet with him, political success was never regarded as
the sole measure of right and wrong. He was governed by higher
and nobler, and more controlling considerations. Thus, when Jefferson was elected President, and some of the political friends with
whom Gov. Jay acted, were counselling indiscreet, if not intemperate
action, the same hand which had endorsed the above words upon
the letter of Gen. Hamilton, penned a letter to the freeholders of
New York, containing this wise, dignified, and temperate advice:
" I take the liberty, therefore, of suggesting whether the patriotic
principles on which we profess to act, do not call upon us to give
(as far as may depend upon us) fair and full effect to the known
sense and intention of a majority of the people in every constitutional exercise of their will, and to support every administration of
the government of our country, which may prove to be intelligent and
upright, of whatever party the persons comprising it may be."
These simple and unobtrusive passages in the history of a life,
however unimportant they may at first sight appear, are noticeable
facts, and should never be lost sight of when we come to measure
the moral worth of the individual.   They are strongly characteristic. They lay open to us the mind, the heart, the inner life of
the man. They indicate the salient features of his character; they
serve to measure his sincerity and truth; they point out the secret
springs which prompt his action-the motives which regulate his
conduct-and by them we can estimate the moral worth, and just
value of the man. The passages I have alluded to, beautifully illustrate the character of John Jay —his uprightness of conduct-his
sincerity of purpose-his purity of mind. They show him, down to
the close of his political career, the John Jay of the Revolution, of
the Continental Congress, and of the New York Provincial Assemblies.
The close of his official career was rendered less dignified perhaps,
certainly less agreeable, by that political contest between the Governor and his council of appointment, which has been alluded to on a
former page.  Not that it detracted from the personal dignity of
Gov. Jay, but, that it placed him in an unenviable and awkward
position;-he, a veteran statesman, just about to retire forever from
6




82             LIVES OF THE CHIEF-JUSTICES.
public life, drawn thus by the force of circumstances, and an honest
regard for the preservation of his constitutional rights and official
dignity, into a contest with two of the ablest, most energetic and
ambitious of those young Republican politicians, who were yet
children at school, at a period when Jay had earned for himself a
reputation as a statesman.
It may well be imagined that there must have been something ludicrous, notwithstanding the gravity and earnestness of their deliberation, in these two or three meetings of the council, in the winter
of 1800 and 1801. On the one side sat Spencer, De Witt Clinton,
and Roseboom: on the other the Governor, (for the first time during his official career, in a minority,) with his solitary adherent.
Eight different nominations for a Sheriff of the county Dutchess
were made by the Governor at the first meeting-and each time was
the nominee rejected by the council. A few other nominations were
then suffered to pass the ordeal, and the council adjourned. At the
next meeting the Governor yielded the sheriff of Dutchess and nominated a Republican, who was approved. A third and final meeting
was held on the 24th of February.  The Republican members of
the Council determined to approve no Federal nominee for the office
of sheriff, in either of the counties of Orange or Schoharie. Gov.
Jay proceeded as usual, to nominate for Sheriff of the county of
Orange. A single affirmative responded to the nomination, and
three resolute and determined voices were heard in the negative.
Again and again were different individuals named for the office, but
with the same result. It was evident that nothing could be done
unless his excellency should yield, which did not seem to be at all
probable.   At this juncture the Governor was startled by a
very bold and novel procedure.  "I nominate John Blake, Jr.,"
said Clinton, in the firm tone of a man assured of his position.  The
meeting had in a moment been transformed from a Council into a deliberative assembly!  Jay hesitated an instant, but refused to entertain the motion or put the question.  " I nominate John Nicholson," he then said; Clinton, Spencer, and Roseboom refused to
vote; matters had come to a stand still, and the business of the
Council was at an end. Gov. Jay, thereupon stating that he desired
time for deliberation, adjourned the Council, and never convened it




JOHN JAY.                        83
again, leaving the vacant offices unfilled. Thereupon he sent in a communication to the Assembly, asking its direction, which that body refused to give, on the ground that it was a constitutional question,
not to be decided by them. He also addressed the Chancellor and
Judges of the Supreme Court, but they, too, declined giving an
opinion, on the ground that it was not within the scope of their
official duties.
The term of office of Governor Jay expired on the 1st of July,
1801. It seems that he had for some time contemplated a final
withdrawal from public life.  The determination had been formed
with deliberation, and it was adhered to with rigid firmness. To the
committee who waited upon him soliciting him to accept a nomination for a third term, he replied: " The period has now nearly arrived, at which I have for many years intended to retire from the
cares of public life, and for which I have been for more than ten years
preparing."  Mr. Jay had become weary of the toils and cares of
public life; perhaps, too, the example of Washington in declining
to serve a third term, may not have been without its influence upon
his mind; at all events he seems to have adopted the resolution as
a matter of choice, and not from any anticipation of a possible adverse result at the election. No public inducements were able to
tempt him to resign the retirement he had voluntarily chosen.  A
short time after he thus declined a third nomination for Governor,
the President, Mr. Adams, unexpectedly informed him, that he had
been appointed, and confirmed to his old office of Chief-Justice of
the United States.  "It appeared to me," remarks Mr. Adams, in
explaining to Jay the cause of his nomination, "that Providence
had thrown in my way an opportunity, not only of marking to the
public the spot where, in my opinion, the greatest mass of worth
remained collected in one individual, but of furnishing my country
with the best security its inhabitants afforded against the increasing
dissolution of morals."  Jay, however, declined the appointment,
and six weeks before the close of his term of office, removed to his
family estate, at Bedford, a quiet and retired part of Westchester
county, about fifty miles from the city of New York, where he continued to reside to the day of his death.




84              LIVES OF THE CHIEF-JUSTICES.
The public career of this eminent man was now closed-closed at
a period of life, (for he was but 56 years of age,) when many of
our public men have not reached midway their course of usefulness.
And yet what an active, and busy, and eventful life had been his;
and what a startling chapter in the history of America, and of the
world, had been written during the quarter of a century which had
elapsed since he first entered the service of his country! With the
events of that period, whose results have been so grand and stupendous, his name, as we have seen, is intimately associated, and without it the history of the times cannot be written. lie now finally
passed from the stage, and during the next quarter of a century
lived in the unbroken seclusion of a quiet and contemplative retirement, a silent, but not an indifferent spectator to the course of public events, and to the development of those institutions which his
hands had helped to raise.
Little remains to be added to this imperfect sketch of Gov. Jay's
career. The remainder of his life, as his son remarks, being entirely
passed in the bosom of his family, and in the peaceful and unostentatious discharge of the duties of religion and benevolence, affords
but few instances for the biographer. It was the life of the upright
and just man —the faithful public servant, who has discharged his
whole duty-whose conscience is void of offence, and who feels the
pleasing satisfaction that his work is done. His time was principally
passed in those agreeable employments, which were so much in accordance with his natural tastes, the pursuits of agriculture. His
amusements and recreations were few and simple. He found the
most of them within the bosom of his family, or in the resources of
his own mind. A work of benevolence or charity would sometimes
occupy his attention-the building of a church, or the interests of
an educational or religious society. At rare intervals, a journey to
New York or Albany, on a visit to some member of his family-often on horseback, exercising in open air-frequently conversing, as
he says, with the "mighty dead," of whom Cicero was his favorite,
or reading the Scriptures —now and then a letter to an old friendthese and kindred employments went to make up the routine of his
daily life. To the question how it was possible for him to occupy




JOHN JAY.                         85
his mind in the seclusion of his retirement, he replied with a smile," I
have a long life to look back upon, and an eternity to look forward
to." If the character of this eminent man is beautiful in its simplicity
and its moral purity, it becomes still more interesting when regarded
as a bright example of Christian virtue. The tone of his mind was
always serious. He regarded religious meditation and worship as no
unimportant part of the duties of life. He, himself, in his own family,
regularly led the family devotions both morning and evening; and
though courtesy to guests might sometimes postpone the customary
early hour for retiring, yet the presence of company never postponed
nor suspended the family worship.* Death invaded his quiet retreat
within a twelvemonth after he entered it, and snatched away the wife
of his bosom, who for so many years had been his companion and
counsellor. Jay endured the afflicting dispensation, not merely with
the calmness of a philosopher, but with that better resignation and
nobler fortitude which Christianity inspires.
The retirement of Mr. Jay was seldom broken in upon, and he regarded the political dissensions of the day, with the philosophic gaze
of a mere spectator. It is not true, however, as has been stated, that
lie took no interest in politics, and would not even peruse political
newspapers. On the contrary, he constantly read the news of the day,
and at times took papers of opposite politics, that he might obtain
more full information of passing events. He also made it a point of
duty to vote at every election.t
The manner of his life, we are told, was simple and regular. He
rose with, or before, the sun, read prayers, breakfasted, aud then
spent the greater portion of the day in the open air, often on horseback. He conscientiously devoted himself to the duties of a private
life; he improved his paternal acres; he rebuilt the mansion of his
fathers; he was kind to his dependents, useful to his equals. He busied
himself with all the interesting occupations of a country life; was
a promoter of, and a member of societies for the diffusion of knowledge and religion, and instructed his relations and servants in those
* Life by Wm. Jay, vol. I. p. 444.
t Letter of Judge William Jay to Mr. Hammond, note D, Political History of
New York.




86              LIVES OF THE CHIEF-JUSTICES.
Christian principles which had always been the guide of his own
course.*
Such were the occupations and manner of life of this venerable
patriot and statesman, for the period of more than a quarter of a
century. The evening of his life was serene and quiet, and he went
down to the tomb full of years and honors. On the 14th of May,
1829, having retired to his bed in the enjoyment of his customary
health, he was seized with palsy, from which he never recovered.
He died on the 17th of the same month in the 84th year of his age.
Mr. Jay was married in April, 1174, to Sarah Van Brugh Livingston, daughter of William Livingston, who had recently removed
from New York to New Jersey, and was subsequently for many
years Governor of the latter State. He was also a member with
Mr. Jay of the Continental Congress of 1175. By this marriage, Mr.
Jay had several children, among whom were the late Peter A. Jay, an
eminent lawyer of New York, and Judge William Jay, of Westchester county, who still continues to occupy the family mansion in
the town of Bedford.
The prominent features of Gov. Jay's character are plainly indicated in his various official and public actions, as well as in his quiet
and unostentatious discharge of the duties of private life. He was
not, perhaps, what may be called a great man. He was not gifted
with those shining qualities of genius, which at once astonish and
dazzle mankind; nor was he endowed with those creative faculties,
that originality of thought, that vigorous grasp of intellect which
stamp their possessor with the impress of greatness. And yet,
though laying claim to none of these, his was far from a mediocrity,
much less an inferiority, of intellect. Jay was decidedly an able
man-a man of extensive attainments and erudition-a vigorous
writer, and a sound thinker. He was more —he had a healthy, temperate, and well-balanced mind-a clear, sound, and comprehensive
judgment-an admirable prudence and caution. And withal he
was a conscientious and a just man-just to his neighbours, as well
as to his family, just to his political opponents, as well as to his
* Prof. Renwick's Sketch of Jay, p. 134.




JOHN JAY.                        87
friends. The caution of Jay was a quality not resulting from timidity or irresolution. Few men were capable of acting a bolder or
more determined part, when occasion demanded. Thus we have seen
that when Livingston and the New York members hesitated to sign
the Declaration, Jay stepped boldly forward in the Convention,
and assumed the responsibility of recommending its approval; and
thus, too, while on his mission in Spain, without any present prospect
of meeting the payment of the heavy amounts drawn upon him, he accepted all bills at his own risk-an act which some might call temerity and rashness. But the prudent conduct of Jay was rather the
result of that innate love of justice, that desire on all occasions of
standing publicly upon the clearest and most defensible issues, that
effort to avoid every controversy, unless under the most obvious
claim of right.  Thus it was, that even after the humble petition of
the first Congress to the King had been treated with the most insulting neglect, Jay originated and carried through, in the next Congress, against the most determined opposition, the proposition to
send another "petition" to the King, which in like manner was
"spurned from the foot of the throne."  He desired to place the
action of the Congress upon the highest, the clearest and most indisputable basis of right, and to leave no cause for cavil, even on
the part of the friends of the British cause. It was the suggestion, not of prudence merely, but of wisdom, for it placed in the
hands of Congress, a moral power which nothing else could give.
The same calm, deliberate, but firm judgment, tempered always
with prudence and caution, is observable in all his actions. And
yet he was deficient neither in quickness of determination, vigor and
boldness of design, nor tenacity of purpose. Indeed, in some respects
he might be called an obstinate man-tenacious of what he believed
to be the right-never conceding a point of conscience, and never
yielding a principle.
The virtues of such a man might still be remembered and sung in
lyric strains by the Roman bardJustum et tenacem propositi virum,
though the republic no longer existed, and the last bright exemplar
of those virtues had passed away. The same virtues lived and were




88             LIVES OF THE CHIEF-JUSTICES.
exemplified in the early ages of our republic, and in the character
of John Jay. Just and firm of purpose, neither the idle clamor of
the populace, nor the countenance of the tyrant could avail to shake
his solid temper; and these virtues, though perchance they may not
be breathed in the numbers of some future lyric song, will be remembered in history, even though America should follow the example
of the proud republic of antiquity.




JOHN RUTLEDGE.








JOHN RUTLEDGE.
THE practical sagacity of Washington, and his almost intuitive
knowledge of character, rarely failed him in that most difficult branch
of executive duty, appointments to places of official trust and responsibility. In the administration of government, as well as upon the
theatre of military operations, he was not only quick in discerning
real merit, but correct in estimating the true worth of a man and
his fitness for the discharge of a specific duty. The same penetrating glance which discovered under the modest garb of General
Greene a military genius fit to direct the operations of the southern
army, discovered also, not the ability and worth only, but the precise sphere of action suited to the capacity and genius of the men
he called around him to fill the highest executive and judicial stations under the Federal Government. Thus it was that, on the
resignation of Chief-Justice Jay, trusting to the instincts of his own
mind, and relying upon his own discriminating judgment, in opposition to the advice of perhaps the most trusted of his counsellors,
he passed by such able jurists as Ellsworth and Livingston, Cushing
and Paterson, and promptly tendered the vacant Chief-Justiceship
to JOHN RUTLEDGE, of South Carolina.
It is much to be regretted that no complete biography of this
eminent statesman and jurist has been written, and that so little is
now known of one of the earliest, and ablest, and firmest friends of
American independence.
John Rutledge was a man of mark and of note in his day;-at
once the Adams and the Patrick Henry of South Carolina-chief
among the South Carolina revolutionary leaders-first in station, in




92              LIVES OF THE CHIEF-JUSTICES.
influence, in talent, amid the brilliant galaxy of patriots whose names
adorn the revolutionary annals of his native State. It is true that
the main facts of his public career remain to us, forming, as they do,
a part of the history of his native State and the country.  Here and
there may also be discovered traces of his judicial life, in the few
and not very fully stated cases found in the earlier South Carolina
reports; but it is to be feared, that now, after the lapse of more
than half a century, the real John Rutledge of the Continental Congress and of the Revolution-the John Rutledge as he lived and
acted in private as well as in public life-as he appeared upon the
bench and to his cotemporaries of the bar-has passed away, and
that it will be difficult, if not impossible to revive any considerable
portion of those private memoirs and personal reminiscenses which
go to make up the most suggestive and interesting portion of biography. A late writer has alluded to the difficulty of drawing a faithful
sketch of Rutledge's career, and remarks  "This now can only imperfectly be done. The private records are wanting. There are no family
memorials, or very few. The voluminous correspondence of Mr. Rutledge, as President of the colony of South Carolina, Governor of the
State, its representative in Congress, and Chief-Justice of the United
States, seems now to be irrecoverable, and but a few letters remain
to us which are yet unpublished."* I shall, however, avail myself of
such materials as can now be obtained, to give some account of the
life, public services, and judicial career of the second Chief-Justice of
the United States.
The father of John Rutledge was a physician. He emigrated
from Ireland with his brother Andrew about the year 1735. The
two brothers settled in South Carolina, where John commenced the
practice of medicine, and Andrew the practice of the law. Two or
three years after his arrival, Dr. John Rutledge married Miss Hexe,
a young lady not yet fifteen years of age, who in 1739 gave birth to
a son, the subject of this memoir. John was the oldest of seven
From an interesting sketch of the life of Rutledge, by the author of " The
Partisan," " The Yemassee," &c., &c., published in the American Review for 1847.
In this sketch Dr. Simms has presented us with some curious original correspondence of Rutledge during the war, from which I have taken the liberty to make
a few brief extracts. See Post, pp. 134-140.




JOHN RUTLEDGE.                        93
children. The celebrated Edward Rutledge, one of the signers of
the Declaration of Independence, of whom  I shall hereafter have
occasion to speak, was the youngest of these children. He was
born in 1749, soon after which Dr. Rutledge died, leaving to his
young widow the care and training of her large family. We are
told she was a woman of great energy, and of more than ordinary
endowments.   How she accomplished the task thus devolved upon
her, the future history of her distinguished sons will speak for itself.
The early education of young Rutledge was the best that the
colony of Carolina at that day afforded. He was placed under the
tuition of David Rhind, an eminent and successful teacher of the
classics. Having made what progress he could in the institutions
of Charleston, his mother, who was possessor in her own right of
an ample fortune, and spared no pains in the education of her children, sent him to England to complete his preliminary studies. Here,
after a time, having determined to follow the profession of the law,
he was entered a student of the Temple, in London, and was in due
time licensed a barrister-at-law. The same course was subsequently
pursued by his younger brother, Edward.*
Mr. Rutledge returned to Charleston, where he commenced the
practice of the law in 1761. He was then twenty-two years of age.
He entered upon his profession under the prestige of a reputation for
ability, attainments and eloquence second to that of no young man
in the colony. Unlike many others, however, who have commenced
life under equally favorable auspices, but whose attainments have
been brilliant and precocious, rather than solid, young Rutledge did
not disappoint the high expectations that had been formed of him.
It has been said of him with truth that he rose in his profession at
a bound, and that his was no tedious probation. Cotemporary accounts
still preserve the memory of his first effort at the bar,t an effort in
which the vehemence and power of his diction, the splendor of his
declamation, the brilliancy of his eloquence, confounded his adversa* This was the course usually followed by young gentlemen of fortune and
family at that day in South Carolina. Rutledge's three colleagues who signed
the declaration, Heyward, Lynch, and Arthur Middleton, all young men like himself, completed their academic studies at the English universities; and so also did
the Pinckneys, William Henry Drayton, and others.
t See Sketch of Rutledge by Dr. Ramsay, 2 History of South Carolina.




94               LIVES OF THE CHIEF-JUSTICES.
ries, and carried away the judgment and feelings of the jury. It
was in an action for damages for a breach of promise to marry-an
action of very infrequent occurrence at the south, and one which
was well calculated to excite the interest and fix the attention of
the public. His successful debut in this suit was but the prelude to
a brilliant career at the bar. It gave him at once position among
his brethren of the profession. How Mr. Rutledge maintained that
position is shown by his future forensic triumphs. Business accumulated rapidly on his hands; that description of business which furnishes the best test of professional ability and success, a test which
is to be found in the importance and character of the cases submitted to the care of the advocate, and the liberal compensation
with which his services are rewarded. It became customary, says
the writer I have quoted, to think that his clients were necessarily to be
successful, and no doubt a foregone conclusion of this sort did much towards the further conviction of judge and jury. Such a conviction
could not readily have been reached until repeated triumphs had impressed the popular mind with the most perfect assurance of his powers.
The same writer,* speaking of Rutledge's characteristics as a lawyer, remarks: " He had shown himself equal at once to the boldest
flights of passion and fancy, and to the strictest and severest processes of ratiocination. His reason and his impulse wrought happily
together. His enthusiasm was never suffered to cripple his induction, nor the severity of his analysis to stifle the ardor of his utterance. A happy combination of all the essentials of the lawyer and
the orator were soon acknowledged to be in his possession."
And again, at a later period, in speaking of his qualifications as
a judge: "He was born a lawyer. His studies in his profession
had been pursued con amore. He had wrestled with the law as one
wrestles with a mistress, and had taken her to his heart as well as
to his lips. His knowledge of principles was profound-his appreciation of details accurate and immense; and that large grasp of
judgment, that comprehensive reach of vision, which enabled him to
take in at a glance, not merely the central proportions, but all its
several relations and dependencies, eminently fitted him for the new
career before him. With the facts fairly within his survey, his
* Dr. Simms' Sketch of the Life of Rutledge, American Review.




JOHN RUTLEDGE.                       95
coup d'ail was instantaneous. His mind seemed to leap to its conclusions at a bound. He loved pleading-could listen with rare
delight to the eloquence of the specious advocate; but while these
gratified his sense of the ingenious and beautiful, they failed to persuade his fancy or to mislead his judgment.  His sense of justice
was invincible. He threaded with ease the most difficult avenues
of litigation-speedily resolved the subtleness of special pleadingsteadily pursued, and finally grasped the leading principle of the
case, and rendered his judgments so luminously and forcibly, as in
most cases to satisfy even those who suffered from his decision."
Such was Rutledge as he afterwards appeared in the character
of a judge. And indeed such was he in these the earlier years of
his professional life. But a higher eulogium is paid him, and a better testimonial afforded of his splendid professional success, in the
fact which has become matter of history, that within four years from
his debut at the bar, he had reached so high a public standing, and
acquired so large a share of the public confidence, that he was appointed a delegate, with General Christopher Gadsden and Thomas
Lynch, to represent the province of South Carolina in the first Congress of the colonies.
This Congress assembled in 1765, soon after the passage of the
memorable Stamp Act. It convened on the proposition of the province of Massachusetts, and was the first step taken toward a permanent political organization and union among the colonies.  The
people of South Carolina were among the first to respond to the call
of their New England brethren. The question, however, was not
decided without great and violent opposition. There was a feeling
of deep-rooted loyalty among the people of the colony-the descendants of the cavaliers of England-and they looked with suspicion
and alarm upon this proposition for a union. But the leading intellect of the province, the men of real talent and influence, were
mostly in favor of a vigorous assertion of colonial rights. Among
these was Christopher Gadsden, who perhaps contributed more than
any other man to awaken the spirit of the colony and to excite the
people to prompt and vigorous action. The year previous, the royal
Governor had refused to administer the oath to General Gadsden as
member of Assembly, and he thus became virtually disfranchised on




96             LIVES OF THE CHIEF-JUSTICES.
account of the freedom of his political opinions. The Assembly,
with much spirit, protested against this high-handedact, and the
usurpation of the royal representative was vigorously denounced,
both in and out of the legislative body. Among the boldest, the
most earnest, and most eloquent in their denunciations was John
Rutledge. It was his first step upon that brilliant political career
which the colonial struggle laid open before him-a career which he
entered with all the fire of youth, all the zeal of an impassioned temper, and the ardor of a bold and impetuous mind.
This circumstance doubtless contributed much to shape the future
course of Rutledge, and to give that strong and decided tone to his
opinions in regard to colonial rights which he ever afterwards entertained and avowed. His was one of those unconquerable wills, one
of those firm and unyielding tempers, which opposition and resistance
serve only to strengthen and confirm in its purpose. His eye was
never accustomed to look back, nor his foot to retrograde. From
that day down to the close of the struggle, he was the firm, vigorous,
and uncompromising champion of the rights of the colonies, always
in advance of the popular movement, always the advocate of the
boldest measures, and always the formidable opponent of the royal
authority. He was doubtless among the first who contemplated the
independence of America; and when the rupture actually occurred, he
would have been the last to consent to a reconciliation.
The Stamp Act was followed by the proposal of Massachusetts
to the provincial Assemblies to send delegates to a common Congress. Christopher Gadsden, as has been already mentioned, at once
came down in support of the measure. He was vigorously and
ably sustained by Rutledge, who went into the contest with his
accustomed spirit and zeal.  Tradition still preserves to us the
memory of that vehement and impassioned eloquence which brought
home to the minds and the hearts of the people of South Carolina
a conviction of the importance and necessity of the proposed measure;-but it is the memory alone, faint and dim in the distance of
the past, and while the imperishable result stands out a notable
and prominent historical fact, the breathing thoughts and burning
words of the orator which so largely contributed to bring about that




JOHN RUTLEDGE.                         97
result, passed away, finding no record in the present, and no life in
the future.
It is sufficient to say that the efforts of Rutledge and Gadsden
were successful. After a vigorous opposition in the Colonial Assembly,* the measure passed by a small majority, and three deputies were appointed to represent the province in the General Congress.  Their names are JOHN RUTLEDGE, CHRISTOPHER GADSDEN,
and THOMAS LYNCH, the father of the signer of the Declaration of
Independence. South Carolina was the first province south of New
England which responded to the call; indeed, with the exception
of Maryland and Delaware, she was the only southern province which
appeared in the first American Congress. The royal authority was
yet too strong for the popular party in North Carolina, Georgia, and
even Virginia herself.
When the Congress assembled in the city of New York, twentyeight delegates, representing nine of the colonies,t appeared. It
was the most important body that had yet convened-in some respects the most important that had ever convened in America.   A
quaint writer has styled it " the very ovum reipublicac."  It contained
the germ of those great ideas, and the elements of those popular
principles which were about to burst forth and shape the political
and social destiny of a continent. It was composed generally of
men of great ability and worth; and yet it is somewhat remarkable
that among these twenty-eight delegates are to be found very few
of the future prominent statesmen  of the Revolution.  It is true
Robert R. Livingston of New York was there, and so was James
* When the measure was first proposed, it was treated with ridicule. One
member made a very humorous speech, and described in a ludicrous manner the
heterogeneous and discordant materials of which such a body would be composed.
A" New England will throw in fish and onions," he remarked; "the middle states
flax-seed and flour; Maryland and Virginia will add tobacco; North Carolina
pitch, tar and turpentine; South Carolina rice and indigo, and Georgia will sprinkle the whole composition with saw-dust." A country member retorted that
he would not choose the gentleman for his cook, but nevertheless if the colonies
proceeded judiciously, they would prepare a dish fit to be presented to any
crowned head in Europe.
t The three southern colonies above mentioned, and New Hampshire, were
unrepresented.
I




98              LIVES OF THE CHIEF-JUSTICES.
Otis of Massachusetts, and Caesar Rodney of Delaware. But Franklin and Hancock, Roger Sherman, Samuel Adams, and Robert
Morris were none of them present; nor (except Rutledge himself,)
were any of those celebrated revolutionary orators who ten years
later electrified the country with an eloquence whose trumpet tones
have been borne on the wings of the flying years, to the ears of a
second and a third generation of men. Virginia's gifted sons were
absent from the Convention. The silvery tones of Lee, whose classic
diction and copious eloquence won for him the title of the Cicero of
America, were not heard in that body, nor the voice of Henry,
—' the forest-born Demosthenes,
Whose thunder shook the Philip of the seas."
Nor was John Adams there, equal in intellect to either, and perhaps superior to both in powers of sarcasm and of bitter, scathing,
terrible denunciation. Hamilton was scarcely out of his nurse's
arms, and Edward Rutledge was yet a boy at school; Ellsworth was
in his senior year at College; Jay was quietly engaged in reading law
at New York, and Jefferson was angling in Virginia, or perhaps dreaming in his office at Devils-burg,* upon metaphysics or political philosophy.
In the midst, then, of these twenty-eight steady, solid, unpretending representatives of the colonies, John Rutledge, at the age of
twenty-six, and the youngest member of the body, stood up in this
first Continental Congress, foremost among the opponents of the
arbitrary measures of Great Britain. What was his precise share
in the deliberations of this body, we have now no means of determining. The official journal, which has been published, is little more
than a brief minute of the daily proceedings of the Congress. Enough
appears from it, however, and from other sources, to justify the conclusion that he was one of the most prominent as well as one cf the
ablest members of the Convention. Of the three committees which
were appointed, he was made chairman of the one charged with the
duty of preparing an address to the Lords in Parliament. This duty
was promptly performed, and the address, it is believed, is from his
pen.
The Congress commenced its session on the 7th, and closed on the
* The name he applied to the ancient metropolis of Virginia.




JOHN RUTLEDGE.                       99
24th of October, 1765. Rutledge shared largely in all its deliberations. The brilliancy of his genius, the boldness of his ideas, the
extent and variety of his information, and the beauty and power of
his diction, all together made a deep impression upon the body of
which he was a member. He had come among them       unheralded
and unknown; he left behind him a reputation of which any man
might be proud. "The members of the distant provinces were surprised at the eloquence of the young member from South Carolina,"
says Dr. Ramsey. Nothing great, "neither wit nor wisdom," from
that province, it seems, had been expected, and their surprise was
complete at witnessing the surpassing ability of one of its delegates,
and he too the youngest member of the Congress. In short, Rutledge made a sensation at this first meeting of the colonial delegates,
as he did upon all occasions, and in all public bodies, whenever and
wherever he chose to mingle in debate.
From the accounts that have been left us by his cotemporaries,
we may gain something of an idea of his mode of speaking, and his
style as a debater. It would seem from these accounts that he had
a tinge of that haughty manner, and all that rapid and vehement
impetuosity-that passionate and earnest emphasis-which characterized the later efforts of the great Maryland advocate, William
Pinkney; but his action was less violent and his gesture more graceful. He had a copious flow of language at command, and much too
of that quick repartee and lively play of fancy and wit which occasionally broke like a gleam of sunshine over the gorgeous but closely
woven web of one of Wirt's forensic arguments. Dr. Ramsay, a
cotemporary, and who must have heard him frequently, both at the
bar and in the Legislature, thus describes him:
"In both capacities he was admired as a public speaker. His
ideas were clear and strong, his utterance rapid but distinct; his
voice, action, and energetic manner of speaking forcibly impressed
his sentiments on the minds and hearts of all who heard him. At
reply he was quick-instantly comprehending the force of an objection-and saw at once the best mode of weakening or repelling it.
He successfully used both argument and wit for invalidating the
observations of his adversary.  By the former he destroyed or
weakened their force; by the latter he placed them in so ludicrous




100               LIVES OF THE CHIEF-JUSTICES.
a point of light that it often convinced, and scarcely ever failed of
conciliating and pleasing his hearers.  Many were the triumphs of his
eloquence at the bar and in the Legislature; and in the former case
probably more than strict impartial justice would sanction; for judges
and jury, counsel and audience, hung upon his accents."      The same
excellent authority notices the distinction in oratorical power between
the two brothers, John and Edward: "Demosthenes seemed to be the
model of the one," he remarks, "Cicero of the other.     The eloquence
of the elder, like a torrent, bore down all opposition, and controlled
the passions of the hearer; that of the younger was soothing, persuasive, and made willing proselytes."*
Rutledge returned to Charleston at the close of this brief session
* The following extract relative to Mr. Edward Rutledge is from Garden's
Anecdotes of the Revolution:
" If the Demosthenian eloquence of John Rutledge was more impetuous and
commanding, the Ciceronian style of Edward was more persuasive. There was a
suavity in his manner, and conciliating attraction in his arguments, that had frequently the effect of subduing the prejudices of the unfriendly, and which never
failed to increase the ardor and inflexibility of steady friends. The eloquence of
John Rutledge was as a rapid torrent; that of Edward as a gentle and smoothly
gliding streaml-the first hurried you forward to the point it aimed at with powerful impetuosity-the last conducted to it with fascinations that made every progressive step appear enchanting. Civil occupations engaged the attention of the
elder brother. The younger, in the field, as well as in the cabinet, obtained celcbrity. In the well-contested action on Port Royal Island, he had the command
of one of the field pieces which essentially contributed to the victory, and justly
received the thanks of the General who commanded. After the capture of
Charleston, the influence both of his talents and example did not cscape the penetration of the British commanders. They plainly saw how much a mana of such
superior ability would be looked up to by the suffering multitude; and to destroy
the effect, by an act of as great tyranny as ever was exercised, removed him to
St. Augustine. The cheerfulness of his natural disposition, his conlciliating attention to his companions in this situation of unmerited persecution, contributed in
no trifling degree to cherish hope, and oppose intrepid resistalnc to every encroachment of despondency. After his exchange and freedom from captivity, he was
elected a member of the Legislature of the State; and at the conclusion of the
war served in the Council, aiding the administration of Governor Mathcws.'"
Mr. E. Rutledge was one of the signers of the Declaration of Indi-cndence,
and served with distinction through several sessions of the Continental Congress
He was elected Governor of South Carolina in 179S, anl died two ye.rs afterwards, universally regretted as he was beloved by the people of his native State.




JOHN RUTLEDGE.                       101
of the first Congress, with a reputation greatly enhanced.  He returned to continue the practice of his profession, in which he had
already laid the sure foundation for success and eminence. The
Stamp Act repealed, he mingled no farther in politics, except so far
as to discharge the duties of a member of the provincial Assembly,
in which station lie had been placed by the suffrages of his fellow
citizens. His professional success continued to grow upon him, and
his reputation to increase with years. At the opening of the Revolution, when he was again called to relinquish his business, he stood
confessedly at the head of the South Carolina bar.   It is to be
regretted that we have so few data for supplying this portion of
Rutledge's career. Like the other colonies, the records of South
Carolina colonial jurisprudence are few  and meare. RIeports of
cases were not commenced until some time after the Revolution, and
the opinions of courts, if any were written at that day, with the
arguments of counsel, have all passed away. It appears that in
Rutledge's time there were no courts, judges, or juries beyond the
limits of Charleston. A single provost marshal was charged with
the service of process over the whole province. The intolerable inconvenience to the people in the back country of attending courts
at such a distance, led them frequently to take the law into their
own hands, and inflict summary punishment upon outrageous offenders. This evil, however, was remedied in a measure by the passage
of an act in 1769, creating seven new district courts. The organization of these new courts, while relieving suitors, of course added
greatly to the labors of the practicing advocate, who was obliged
to ride the circuit in his attendance upon them. Business, doubtless, increased in a corresponding degree, and to such members of
the profession as Rutledge, neither fees nor clients were ever wanting. Still, notwithstanding the increase of courts, at that early day
in South Carolina, the amount of litigation was quite limited. The
greatest number of judgments ever entered up in Charleston in any
one year before the Revolution, was 390, and the average of seven
years immediately preceding the Revolution, 236. These included
all the judgments entered up in the colony; for although new courts
were organized by the act of 1769, yet they were not courts of
original jurisdiction or of record, and all the judgments obtained




102             LIVES OF THE CHIEF-JUSTICES.
in the country districts were entered up in Charleston.* This statement, therefore, shows very correctly the extent of legal business in
the colony during the period of Rutledge's practice.  From  his
great abilities and success as a nisi prius lawyer, he no doubt participated to a large degree in all the business of the courts, and was
probably engaged, on one side or the other, in every important litigated suit. Many of these questions would no doubt now be of
peculiar interest, as exhibiting the state of colonial jurisprudence at
that time, and the manner of Rutledge's demeanor at the bar. It
seems, however, impossible to revive them, except through the dim
and uncertain light of traditionary accounts; I therefore take leave
of Rutledge as an advocate at the bar, doing so with the less regret,
as we are now about to follow him upon that broad and extended
theatre of public usefulness which the Revolution opened before
him, and in which the most shining qualities of his genius were exhibited.
The revolutionary movements in South Carolina may be said to
date from  that general Convention of the citizens of the colony
which assembled at Charleston on the 6th July, 1T4. At this
Convention the proceedings of the parliament of Great Britain
against the province of Massachusetts were considered, and strong
resolutions passed in favor of sustaining the rights of the colonies
against the unjust pretensions of the crown. In order to lay the
foundation for a permanent organization, the Convention appointed
a general committee of ninety-nine persons, to act as a committee
of correspondence, and with full powers to do every thing necessary
to carry into effect the resolutions then passed. The Convention
also appointed five delegates "to meet the deputies of the several
colonies in North America in General Congress."  These delegates
were John Rutledge, Edward Rutledge, Henry Middleton, Christopher Gadsden, and Thomas Lynch. They of course acted under no
legal and constitutional authority, but simply as the representatives
of a Convention of the people which doubtless indicated the public
sentiment of the colony. Of this Convention the Rutledges had
been members. Upon the motion to appoint delegates to the General Congress, an effort was made to instruct them as to the extent
* 1 Ramsay Hist. South Carolina, p. 158.




JOHN RUTLEDGE.                     103
to which they might go in pledging the support of their colony to the'Bostonians. This proposition was vigorously and successfully combatted by John Rutledge. He desired the South Carolina delegates to go into the Congress untrammelled by instructions, and unlimited in powers. These views he enforced in a speech of transcendant ability-one of those impetuous and soul-stirring harangues
which, like the impassioned appeals of the great Virginia orator,
infused a new courage into the hearts of the people, and opened
their minds to a full comprehension of those great issues which were
now to be encountered. It was the first blast of the revolutionary
trumpet from South Carolina-not merely a feeble re-echo of those
warlike notes which were wafted on every breeze from the provinces
of Massachusetts and Virginia-but a bold and hearty response,
ringing out loud and clear, like the clarion notes with which the
knight as he entered the tournament responded to the challenge of
his adversary.  Rutledge clearly saw that the crisis had arrived
when it was necessary to act, and to act with vigor and firmness.
The proposal to limit the powers of the delegates he believed would
defeat the object of their appointment. He was satisfied that a
Congress of the colonies for consultation merely would amount to
nothing. It was necessary therefore that the delegates should have
plenary power to act, limited by nothing but their own discretion,
as the emergency might require.  These views he enforced in a
speech of overwhelming eloquence and unanswerable argument. He
infused his own daring spirit into those who had hitherto been timorous and wavering. He silenced, if he did not convince, every
opponent. On that day, undoubtedly, John Rutledge gave its first
impulse to the Revolution in South Carolina; and perhaps it
may be added, that on that day, too, he placed himself at its head.
"What shall be done with the delegates if they betray their constituents, and pledge the colony to a course inconsistent with the
public interests?" demanded an opponent. Rutledge turned upon
him, and with a passionate gesture, and an eye flashing indignation,
exclaimed, "Hlang them! hang them!"  It was idle to resist such
appeals, or to combat an energy and resolution like this.  The
views of Rutledge prevailed, and the delegates, of whom he was
one, were appointed under no instructions, or pledge of fidelity what



104             LIVES OF THE CHIEF-JUSTICES.
ever, and with unlimited powers.  The resolution of appointment
clothed them "with full power and authority, in behalf of us and
our constituents, to concert, agree to, and effectually to prosecute
such legal measures (by which we for ourselves and them most solemnly engage to abide,) as in the opinion of the said deputies and
of the deputies so to be assembled shall be most likely to obtain a
repeal of the said acts, and a redress of these grievances."
A few days after this, Rutledge and his associates sailed for Philadelphia.  On their arrival they were joined by deputies from the
other provinces, clothed with similar powers, and soon after the
memorable Congress of 17f4 commenced its session. The proceedings of this body are matters of history, and it is not necessary to
detail or discuss them here. It was in every sense an extraordinary
body of men. Most of them were still strangers to each other, and
the great majority of them had not yet acquired even a provincial
reputation. Only nine of the delegates to the Congress of 1765
had been returned, namely Eliphalet Dyer, of Connecticut, Philip
Livingston, of New York, John Dickinson and John Morton, of
Pennsylvannia, Coesar Rodney and Thomas M'Kean, of Delaware,
and Gadsden, Rutledge and Lynch, of South Carolina. But in the
list of the new members were numbered some whose names were
destined to become famous in the history of their country. Among
the delegates from Virginia was a modest and unobtrusive gentleman, in whom the penetrating eye of Patrick Henry had detected
"the GREATEST MAN on the floor "-Col. George Washington.
HENRY himself was already a man of note, and had acquired more
than a provincial reputation;-and among his colleagues was one
who might in some degree claim to dispute with him the palm of
eloquence, RICHARD I-ENRY LEE.   In the delegation from Massachusetts Bay was an active, resolute, ambitious man-a man of
extensive information, great energy, and indefatigable industryJOHN ADAMs-destined to act no inconsiderable part in the grand
drama that was about to open. THOMAS JOHNSON, subsequently a
Justice of the Supreme Court of the United States, was a member
of the Maryland delegation; and from the same State another future
Justice of the Supreme Court, that able and singularly gifted, but
wayward and erratic genius, SAMUEL CHASE. New York had sent




JOIN RUTLEDGE.                     105
among her eight delegates, a young man who was thought to possess some talent, and now made his debut in public life-JoIIN JAYthe future Chief-Justice; and among the five delegates from South
Carolina another still younger man appeared, EDWARD nRUTLEDGE,
then only twenty-five years of age, who had come with his brother
John from Charleston, to assist in these serious deliberations, and
who proved himself, in real capacity and influence, as well as in
eloquence of speech, inferior to few men in that assembly.  The
name of ROGER SHERMAN appeared in the list of the Connecticut
delegates-that of SAMUEL ADAIMS from Massachusetts, JOIN SULLIVAN from New Hampshire, and WILLIAM LIVING STON form New
Jersey.
Such were the men with whom Joln Rutledge now found himself
associated.  To assume and maintain a commanding position in a
body composed of materials like this, required no ordinary ability.
But Rutledge was fully equal to the effort. As an orator and a
statesman, few men attained a prouder position in that body. In
the language of Patrick Henry, "he shone with superior lustre."
His powers of eloquence are vouched for by no meaner authority
than Mr. Henry himself. Being questioned, on his return to Virginia, relative to the character of the Congress, and of the individuals composing it, and particularly whom  he thought its greatest
man, he replied, " If you speak of elcquence, John Rutledge of South
Carolina is the greatest orator; but if you speak of information and
sound judgment, Col. Washingtton is unquestionably the greatest
man on the floor." *  Such was the estimate of Rutledge's powers
by the great orator of Virginia; and the accuracy of Mr. HIenry's
judgment upon a matter of this kind cannot be questioned. To be
assigned by him the first place in a body containing such parliamentary orators as Adams and Lee, is no common praise;-and the
tribute is the more valuable, inasmuch as it was frankly and freely
offered to one who, if not already, might some day, perhaps, become
a rival. It is Cicero speaking the praises of Crassus.
At the close of the deliberations of this Congress, Rutledge and
his associates returned to South Carolina. In the mean time, the
Executive Committee had summoned the first provincial Congress
* Wirt's Life of Patrick Henry. Garden's Anecdotes.




106             LIVES OF THE CHIEF-JUSTICES.
of the colony, composed of representatives elected by the people in
every parish and district. This Assembly of course had no legal
or constitutional existence. It was entirely revolutionary in its character, but as representing the great mass of the people, its acts
and proceedings were regarded as of the highest authority. It met
on the 11th January,. 1775, and immediately took into consideration
the proceedings of the Continental Congress at Philadelphia.  It
was upon this occasion that Rutledge and his associates appeared
before the Assembly to render an account of their proceedings.
Some objections had been taken to a clause in the non-intercourse
act with Great Britain, excepting from the operation of the act the
exporting of rice to Europe. Rutledge, who with three of his
associates had voted in favor of this exception, now undertook the
defence of himself and colleagues, and explained the object and design of the exception. His speech upon this occasion was very able
and ingenious, and withal was attended with the most gratifying
results. The assembly, without a dissenting voice, returned public
thanks to their late delegates, approved their proceedings, and resolved to carry them into execution. The Assembly also re-appointed
Rutledge and his four associates to represent South Carolina in the
next General Congress.
The autobiography of Mr. John Adams shows that Rutledge,
even at this early period, was the warm advocate of measures tending toward colonial independence, and far in advance of most of his
colleagues. On the 2nd of June, 1775, the President laid before
Congress a letter from the provincial Convention of Massachusetts,
requesting Congress, among other things, to favor them with " explicit advice respecting the taking up and exercising the powers of
civil government," &c. The vigorous and impulsive mind of John
Adams had already anticipated the subject. In his opinion, Congress ought at once to recommend to the people of every colony to call
conventions of representatives immediately, and set up governments
of their own, under their own authority; for THE PEOPLE, he thought,
were the source of all authority, and ORIGINAL. OF ALL POWER.
"These were new, strange, and terrible doctrines," he remarks, "to
the greatest part of the members; but not a very small number
heard them with apparent pleasure, and none more than Mr. John




JOHN RUTLEDGE.                      107
Rutledge of South Carolina, and Mr. John Sullivan of New Hampshire." *
John Adams was no half-way revolutionist; he had the ring of
the true metal in him; while others lagged in the rear, he pressed
forward to the van, in the very front rank of this revolutionary
movement; and by his side stood John Rutledge of South Carolina.
Let us observe the further proceedings upon this project for " independent colonial governments," brought forward in Congress more
than a year before the Declaration of Independence.
The next day a committee was appointed on the Massachusetts
memorial, of which Rutledge was chairman. They had several conferences with the Massachusetts delegates, and reported on the ith
of June, in substance, that in their opinion the royal Governor and
Lieutenant-Governor ought to be considered as absent, and that it
be recommended to the provincial Congress of Massachusetts to take
measures for choosing an assembly or council to exercise the powers
of Government, until "a Governor of his majesty's appointment will
consent to govern the colony according to its charter."  Rutledge entered fully into all these views. He had frequent conferences with
Adams on the subject, and they fully discussed together the important question as to what form of government it was proper to
adopt, as the government of a free State. " Not long after this,"
says Mr. Adams, "Mr. John Rutledge returned to South Carolina,
and Mr. Sullivan went with Gen. Washington to Cambridge, so that
I lost two of my able coadjutors. But we soon found the benefit of
their co-operation at a distance."
On the return of Rutledge to Congress the subject was again
agitated. An animated debate sprang up, October 26th, on the
question of instructing the New Hampshire delegation, namely, that
Congress should direct "a method for our administering justice and
regulating our civil police."  In this discussion Adams and Rutledge took the lead, and were ably sustained by Lee, Gadsden, Sherman, and Dyer. At the close of the debate a committee of five
was appointed, of which Rutledge was chairman, and Adams a
member, which reported, November 3d, recommending the establishment of an independent government by New Hampshire during
* Life and Works of John Adams, Vol. III. p. 16.




108              LIVES OF THE CHIEF-JUSTICES.
"the continuance of the present dispute."    Rutledge, who, says
Adams, was now "completely with us in our desire of revolutionizing all the governnments," immediately brought forward some representations from his own State, which were referred to a select committee of five. This committee reported the next day, recommending
a course precisely similar to that which had been recommended in
the case of New Hampshire.*   Let us now see how this revolutionary
movement, instituted by Rutledge in the Continental Congress, was
carried out in his own State.
No revolution was ever effected with greater unanimity, or with
more order and regularity than the revolution in South Carolina;
and the reason assigned is that the leading men in every part of the
province, from the first moment of the contest, exerted themselves
in the cause of their country, and very few of them took sides with
the royalists. Thus, it appears that the Constitutional Assembly,
under the royal government, in 174, without a dissenting voice,
sanctioned the appointment of Rutledge and his associates as delegates to Congress.   In the spring of 177 5 his majesty's justices
made their last circuit, on which occasion WILLIAM JHENnY DRAYTON,
the only one of the judges born in America, in charging the grand
jury, distinctly avowed the sentiments of the popular leaders.t  Indeed it may be said that after the reception of the news of the battle
of Lexington, in the spring of 1715, there was no longer any royal
government or royal authority in South Carolina. The revolution
was already accomplished.  And although the royal Governor, Lord
William  Campbell, refused to recognize the Provincial Congress,
and returned the haughty answer to their address, "I know of no
representatives of the people of this province, except those constitutionally convened in the General Assembly," yet the Provincial
Congress was none the less de facto the ruling authority in the province.
On the reception of the news of the battle of Lexington, the Pro* Life and Works of John Adams. Vol. III. p. 20-22.
t Soon after this, the other judges, having refused to sign the articles of association, were put under arrest; the doors of the courts of justice were thereupon
closed, and so remained for a twelvemonth, and until re-opened by Judge Drayton
under the authority of the new Constitution.




JOHN RUTLEDGE.                      109
vincial Congress was summoned by the committee to meet in twentythree days. On the second day after their meeting, the delegates
passed a resolution wherein they declared that they united themselves "under every tie of religion and honor" in defence of their
country-" hereby solemnly engaging, that whenever our continental
or provincial councils shall decree it necessary, we will go forth, and
be ready to sacrifice our lives and fortunes to secure her freedom
and safety."  The character of the men who engaged in this work
was the best guaranty of its final accomplishment.  Nearly every
prominent man in the colony pressed forward into actual service.
The Council of Safety was composed of such distinguished citizens
as Henry Laurens, Charles Pinckney, Arthur Middleton, William
Henry Drayton, and others of equal worth and ability. When it
was proposed to raise two regiments of foot and a regiment of rangers, for the public defence, many gentlemen of the first families in
Carolina pressed forward for commissions, and the applicants were
four times as numerous as could be employed.   The well known
names of Gadsden, Moultrie, and Sumpter, appear in the list of colonels commissioned by this Congress, and among the captains, Francis Marion, Thomas Pinckney, Charles Cotesworth Pinckney, Thomas Lynch, Jr., and Francis Huger. Thus it was that by imperceptible degrees the whole authority of the State, legislative and
judicial, as well as executive, was transferred to the Provincial Congress, and a new government introduced, by the common consent of
the people.
The ancient forms of the royal Constitution, however, were still
preserved, but the impropriety of this soon became manifest. Accordingly, in the spring of 1776, South Carolina, acting upon the
recommendation which, as we have just seen, had already been
given by Congress, threw off the shackles of colonial servitude, and
adopted an independent Constitution and form   of governmentthus virtually asserting her own independence some months before
the declaration of July 4th, 1776.
In this great work, John Rutledge acted a most important part.
Early in the spring he had returned with two of his colleagues from
attending the American Congress in Philadelphia. The Provincial
Congress, then in session, welcomed the three delegates with the




110             LIVES OF THE CHIEF-JUSTICES.
most flattering marks of attention; and the President, Judge Drayton, was directed to address them in the name of the Congress, and
present its thanks for their important services. Rutledge thereupon
took his seat in this Assembly, and immediately directed his attention to the formation of the proposed plan of government.
The measure was not carried without a warm and spirited struggle. A desire for a reconciliation was still openly professed by all,
and doubtless sincerely entertained by many.  Some denied the
necessity of any independent Constitution; some were willing to
establish a temporary government, as recommended by Congress;
while the bolder and more ardent popular leaders advocated a total
and permanent change. While the measure was yet under consideration, new acts of aggression on the part of Great Britain turned
the scale, and silenced all opposition. An independent Constitution
was resolved on.   Rutledge was placed upon the committee of
eleven charged to prepare and report a plan. Still the more moderate men and friends of a reconciliation achieved a partial triumph,
for it was decided after a long and exciting debate, that the new
government should be temporary merely, and should exist only " till
a reconciliation between Great Britain and the colonies should take
place."
On the 24th of March, Rutledge made a final report upon the
subject in charge of the committee, and two days after, the new Constitution was adopted. It is said, with truth, douLtless, that to
Mr. Rutledge's activity and grasp of mind, his political acuteness
and great legal knowledge, the people of South Carolina were indebted for most of the provisions of this first Constitution.  The
preamble, in which are set forth at length the grievances of the
Colonies, and the causes inducing the Assembly to adopt the new Constitution, is entirely the production of his pen. " It is remarkable,"
says a writer, "not less because of its compactness and comprehensiveness, than because it embodies in nearly the same order, and
sometimes in the same phraseology, the very matter which in a more
condensed form, was subsequently employed by Mr. Jefferson in the
famous Declaration."  It closes with the following compact and nervous sentences: " And whereas the judges of the courts of law here
have refused to exercise their respective functions, so that it is be



JOHN RUTLEDGE.                      111
come indispensably necessary that during the present situation of
American affairs, and until an accommodation of the unhappy differences between Great Britain and America can be obtained, (an
event which, though traduced and treated as rebels, we still earnestly desire,) some mode should be established by common consent,
and for the good of the people, THE ORIGIN AND END OF ALL GOVERNMENT, for regulating the internal polity of this colony;-the
Congress being vested with powers competent for the purpose, and
having fully deliberated touching the premises, do therefore resolve," &c.
The legislative authority under the new government consisted of
three branches-an Assembly elected every two years by the people,
a legislative Council, consisting of thirteen members, elected out of
their own body by the Assembly, and a privy Council, together with
a president and commander-in-chief, elected by the Assembly and
legislative Council from among themselves or the people at large.
The executive authority was vested in the president, with the right
to appoint all officers in the army and navy, except field-officers in
the army and captains in the navy. This extensive authority was
subsequently, as we shall see, enlarged in the hands of President
Rutledge into complete dictatorial powers-powers which, though
wielded by him with characteristic energy, were never perverted or
abused.
The Constitution provided that the existing Congress should be
the first General Assembly of South Carolina, and accordingly the
new government went immediately into operation. Rutledge was
chosen President without opposition, and Col. Henry Laurens VicePresident. William Henry Drayton was, at the same time, elected
Chief-Justice, with Thomas Bee, John Mathews and Henry Pendleton, Esqrs., Associate-Justices.  An Admiralty Court was organized
by the appointment of HUGH RUTLEDGE, a younger brother of the
President, as judge; * and the Vice-President of the colony, with
* "The talents of Mr Hugh Rutledge were not perhaps equally brilliant, nor
of so distinguished a cast as those of his brothers; but for solidity of judgment
and strong manly sense, he was not inferior to either of them; and as a firm and
intrepid patriot was pre-eminently distinguished by the cheerful performance of
every duty to his country. He, too, like his brother Edward, was deemed of




112              LIVES OF THE CHIEF-JUSTICES.
the privy council, among whom were Judge Drayton and Charles
Pinckney, exercised for the time being the powers of a court of
Chancery.
Mr. Rutledge being present, as a member of the Assembly, when
elected president and commander-in-chief, immediately delivered the
following brief extemporaneous address:
" GENTLEMEN —The very great, unsolicited and unexpected honor
which you have been pleased to confer on me, has overwhelmed me
with gratitude and concern.   Permit me to return you my most
sincere thanks, for so distinguishing and unmerited a mark of your
confidence and esteem.   I have the deepest sense of this honor.
The being called by the free suffrages of a brave and generous people, to preside over their welfare, is in my opinion the highest any
man can receive. But dreading the weighty and arduous duties of
this station, I really wish that your choice had fallen upon one better qualified to discharge them; for, though in zeal and integrity I
will yield to no man, in abilities to serve you I know my inferiority
to many.  Since, however, this, gentlemen, is your pleasure, although
I foresee that by submitting to it I shall be ranked by our enemies
amongst ambitious and designing men, by whom, they say, the people have been deceived and misled, yet as I have always thought
every man's best services due to his country, no fear of slander or
of difficulty or danger shall deter me from yielding mine. In so
perilous a season as the present I will not withhold them; but in
her cause every moment of my time shall be employed.       Happy
indeed shall I be if those services answer your expectations, or my
own wishes.  On the candor of my worthy countrymen I rely to
put the most favorable construction, as they hitherto have done,
upon my actions.   I assure myself of receiving, in the faithful discharge of my duty, the support and assistance of every good man in
the colony; and my most fervent prayer to the omnipotent Ruler
sufficient consequence to be made an object of peculiar persecution; atnd being
sent into exile, supported all the trials of long confinement and irritating restrictions with unshaken constancy. After his exchange, he filled the speaker's chair
in the Legislature, greatly to the satisfaction of its members, and finally advanced
to the Chancery bench, closed a life of usefulness with the applause and sincere
regrets of his grateful country."-Garden's Anecdotes.




JOIN RUTLEDGE.                      113
of the universe is, that under his gracious Providence the liberties of
America may be forever preserved."
The president immediately, in presence of both houses, took the
constitutional oath to sustain the new form  of government, adding
thereto the solemn asseveration that he would " cause law and justice
in mercy to be executed, and to the utmost of my power maintain and
defend the laws of God, the protestant religion, and the liberties of
America."
Alluding to this in his speech to the legislative body, two weeks
afterwards, when the session closed, President Rutledge remarks:
"On my part a most solemn oath has been taken for the faithful
discharge of my duty. On yours a solemn assurance has been given
to support me therein. Thus a public compact between us stands
recorded. You may rest assured that I shall keep this oath ever
in my mind; the Constitution shall be the invariable rule of my conduct; my ears shall be always open to the complaints of the injured;
justice in mercy shall neither be denied nor delayed; our laws and
religion, and the liberties of America, shall be maintained and defended to the utmost of my power. I repose the most perfect confidence
in your engagements."
The speech from which the foregoing extract is taken contained
a resume of the various matters in dispute between the colonies and
Great Britain, and an earnest appeal to the people, through their
representatives. It was printed at the time, by order of the Assembly, in handbills, and circulated throughout the colony. The
criticism passed upon it by the writer of the sketch of Rutledge,
heretofore alluded to, seems, however, quite just; that the speech,
reduced to writing, is not such a performance as would command
attention now. Nor can it be compared for a moment with that
forcible, spirit-stirring and masterly statement with which, under
the form of a charge to the grand jury, Judge Drayton, a few days
afterwards, opened the provincial courts under the authority of the
Legislature, after they had been closed for a period of twelve months.*
* Judge William Henry Drayton was born at Drayton Hall, South Carolina,
in September, 1742. At the age of eleven his father sent him to England, under
the care of Charles Pinckney, for the purpose of prosecuting his studies with Mr.
PinckL-ay's two sons, Charles Cotesworth and Thomas Pinckney. In the autumn
8




114               LIVES OF    THE CHIEF-JUSTICES.
In the foregoing extract from     President Rutledge's address, he
speaks of the "solemn assurance" given by the Legislature to sustain him in his office.  This assurance was contained in the address of
both houses, presented a few days after his inauguration.   It is curious
to observe, however, that in this address the " accommodation with
Great Britain" is still prominently put forward.
"We firmly trust you will make the Constitution the great rule
of your conduct;"-it says-" and in the most solemn manner, we
do assure your Excellency, that in the discharge of your duties
under that Constitution, which looks forward to an accommodation
with Great Britain (an event which, though traduced and treated as
rebels, we still earnestly desire), we will support you with our lives
and fortunes."   President Rutledge, it appears, did not at this period look forward so anxiously toward this " accommodation," nor
esteem  it to be any part of his executive duties to bring it about.
His language upon this subject is cautious and guarded: "Be persuaded that no man would embrace a just and equitable accommrodation with Great Britain more gladly than myself; but until so
desirable an object can be obtained, the defence of my country, and
of 1761 young Drayton entered Oxford, where he continued his studies nearly
three years. Being obliged to return to America before the completion of his
studies, he turned his attention, it is said, to law and politics. In 1771 he was
appointed a privy councillor for the province of South Carolina, and on the decease
of Judge Murray was commissioned, in January, 1774, by Lieutenant-Governor
Bull, an assistant judge of the province until his Majesty's pleasure should be
known thereon. Soon after the Continental Congress met at Philadelphia, and
Judge Drayton, who had warmly espoused the cause of the colonists, addressed a
very able pamphlet to the deputies in Congress, in which he stated the grievances
of America, and drew up a bill of rights. This brought down upon him an accusation of the Chief-Justice, Gordon, and one of the Associate-Justices, before the
Council, and Judge Drayton was finally superceded in March, 1775, The next
year he was appointed Chief-Justice, under the Revolutionary government. In
this capacity he re-opened the courts, and in various charges to the Grand Jury
sustained the cause of the colonies with great boldness, vigor and ability. Judge
Drayton was a member and President of the Provincial Congress of South Carolina. Subsequently, in 1778, he was elected a delegate to the Continental Con-:gress. He died at Philadelphia, in September, 1799, while still a member of Congress, and Chief-Justice of South Carolina, in the thirty-seventh year of his age.
" He was a statesman," says Dr. Ramsay, " of great decision and energy, and one
of the ablest political writers South Carolina has produced."




JOHN RUTLEDGE.                      115
the preservation of that Constitution, which from a perfect knowledge of the rights, and a laudable regard to the happiness of the
people you have so wisely framed, shall engross my whole attention."
The most sagacious intellects in the State had no doubt already
begun to realize the momentous truth which a few months latter was
demonstrated in the action of the Continental Congress, that accommodation with Great Britain was impossible. Thus Judge Drayton did not hesitate to express it in his celebrated charge to the
Grand Jury, to which I have alluded.    "The Almighty created
America to be independent of Britain," he remarked; " let us beware of the impniety of being backward to act as instruments in the
Almighty hand, now extended to accomplish his purpose."
Installed as President and Commander-in-chief of the colony, Rutledge was soon called upon to exhibit his zeal and courage in the
defence of his people. Up to this time South Carolina had been
exempt from the presence of the enemy, and with the exception of
a few royalists scattered here and there over the colony, very little
opposition had been manifested to the new government. The royal
Governor, Lord William Campbell, after vain efforts to excite the
royalists to opposition, had some months previous to this time abandoned the government, and taken refuge on board a British sloop-ofwar in thile harbor of Charleston. He had promised his adherents
before his departure that " his Majesty was determined to send out
troops" to reduce the rebels to submission; but for several months
he awaited in vain the arrival of the expected aid. At length early
in June, lV76, it was announced.  The citizens of Charleston were
suddenly aroused from their repose by the intelligence that a British
fleet of forty or fifty vessels was at anchor about six leagues to the
north of Sullivan's Island, carrying a formidable and overwhelming
force under the command of Sir Henry Clinton, for the reduction
of the rebellious province.  Instantly the alarm was given, and
every thing was in commotion in the colony. The President and
Commander-in-chief was upon the scene of action; and the firmness,
decision and energy with which he guided public affairs at this criti-,
cal moment, caused the superiority of.his genius to be known and
acknowledged by all. He immediately summoned the militia of the
county to repair to Charleston; he ordered the regiments already




11 (~           LIVES OF THE CHIEF-JUSTICES.
formed into active service; he exerted his authority to the utmost
to arm, equip and supply the troops. His efforts were nobly seconded by the officers under his command. In the course of a few
days five or six thousand men were assembled for the defence of
Charleston.  Congress, unable at that particular juncture to furnish
any thn mr alant thing more valuable, sent the southern people a very experienced,
and, as it was then supposed, a very able and skilful general, the
eccentric Charles Lee, whose subsequent exploits by no means
equalled his great reputation. It has been well remarked that it
was fortunate for South Carolina at that juncture that she had
placed at the head of her affairs a man so resolute and prompt, and
a statesman so sagacious as John Rutledge. Without him, and with
no councils to guide but those of General Lee, Charleston would
most probably have fallen, and the royal Governor, Lord Campbell,
have been reinstated in his authority, under the guns of the British
squadron and the bayonets of Sir Henry Clinton's army.
One of the main points of defence to the city was upon Sullivan's
Island, six miles nearer the sea than the neck of land on which
Charleston stands, and so near the channel as to be a convenient
post for annoying ships approaching the town. A rude fort had
been erected on this island, constructed of timber of the Palmetto
tree. This fort, subsequently known by the name of Fort Moultrie,
from its heroic defender, with its little garrison of three hundred
and forty-four men, was condemned by General Lee on his arrival,
who declared it to be a "slaughter-pen," and advised President
Rutledge to order its immediate abandonment.     This Rutledge
promptly declined, and heroically replied that "while a soldier remained alive to defend it, he would never give his sanction to such
an order."  " They will knock your fort about your heads in half an
hour," remarked Gen. Lee to Moultrie, and actually proposed to
diminish the number of troops on the island.*  But Rutledge, taking
counsel from the inspiration of his own courage, rather than from
the skill of his experienced adviser, persisted in his resolution, and
directed Moultrie to defend the fort to the last extremity.
* In a despatch to Moultrie, Gen. Lee, alluding to the force of about one thousand regulars and militia under Cols. Clark. Thompson and IHorry stationed on
the east end of Governor's Island, says: "I would order the whole body off the
island, but apprehend it would make your garrison uneasy."




JOHN RUTLEDGE.                        117
The attack on Fort Moultrie was made on the 28th of June.
The British fleet consisted of ten vessels, two of which were fifty gun
ships, and four frigates of twenty-eight guns each. The heroic and
successful defence of the fort by Col. Moultrie constitutes a proud
chapter in the revolutionary annals of South Carolina. For a moment,
however, in the midst of that terrible cannonade, as the flag of the
fortress fell to the beach, it seemed that Lee's prediction would be
verified; that the fort would be battered down, and the garrison
annihilated.  But it was for a moment only.    The same anxious
eye that saw through the distance and the smoke of the battle, the
flag-staff fall from the merlon, the next moment gazed upon a sight
that caused every heart to thrill with exultation. A  sergeant of
grenadiers leaped from one of the embrasures of the fort upon the
beach; into the open fire of the British guns, seized the fallen banner, and bearing it back amid a shower of balls, planted it once
more upon the American works in triumph. This gallant soldier
was Sergeant Jasper.    Rutledge appropriately acknowledged his
heroism after the battle, by presenting him with his own sword, in
presence of the garrison, and tendering him   a commission in the
regiment.*
General Lee, it seems, could not be convinced, even after the battle
had been raging two hours, that it was possible to beat off the
British frigates. The following is his dispatch to Moultrie during the
battle:
"DEAR COLONEL-If you should unfortunately expend your ammunition without beating off the enemy, or driving them on ground, spike
your guns, and retreat cwith all the order possible."
But the gallant Moultrie had no thought of retreat. The inspiration of courage was with him the inspiration of hope, and the
assurance of success. Not even the positive command of Lee would
* Jasper proudly accepted the sword, but declined the commission. " Were I
made an officer," he modestly said, " my comrades would be constantly blushing
for my ignorance, and I should be unhappy, feeling my own inferiority. I have
no ambition for higher rank than that of a sergeant." Mr. Garden says, in his
Anecdotes, that the subsequent conduct of Jasper was exemplary-but in the
details which he had seen carried too much the air of romance to be dwelt upon.
He fell, mortally wounded, while vainly endeavoring to plant the colors of his
regiment on the walls of Savannah.




118            LIVES OF THE CHIEF-JUSTICES.
have drawn him from his post while a single cannon remained mounted,
or one palmetto log lay upon another. He had in his pocket the
directions of his own commander-in-chief-received on the morning of
the battle-and they coincided too closely with his own determined
bravery to be disregarded. These directions were given in the following laconic and characteristic sentences:
" General Lee wishes you to evacuate the fort. You will not do so
without an order from me. I would sooner cut off my hand than write
one."                                         J. RUTLEDGE."
During the whole of the engagement, President Rutledge was in
active duty among the citizens aud soldiers, who had crowded to
their various posts of defence in the city, with arms in their hands,
determined to fight every inch of ground from the waters' edge, if
the enemy should finally overpower the fort and garrison, and effect
a landing. While Lee was talking of retreat, Rutledge was devising means to supply the garrison with ammunition. At the height of
the engagement he sent in a quantity of powder, with the following
despatch to Moultrie:
" I send you five hundred pounds of powder. You know our collection is not great. Honor and victory, my good sir, to you and our
worthy countrymen with you. Do not make too free with your cannon. Cool and do mischief."
The advice was followed to the letter. The officers from the fort
managed the guns with such skill, that nearly every shot took effect.
The Thunder Bomb, after discharging sixty shells, was disabled.
The Acteon was so crippled that after the action she was abandoned
and blew up. The Bristol, fifty gun ship, had every man on her
quarter-deck killed or wounded, and with the Experiment, the other
fifty gun ship, sustained a loss of sixty-three killed and one hundred
and forty-seven wounded. Finally, after a cannonade of eight or ten
hours without intermission, the squadron slipped its cables and retired,
bearing away Lord William Campbell mortally wounded. Thus ended
the threatened invasion of South Carolina.
Congress returned a vote of thanks to General Lee, and Colonels
Moultrie and Thomson, for their good conduct on this memorable
day. The result of that day was of the utmost importance to Sout i




JOHN RUTLEDGE.                      119
Carolina. It removed the foot of the invader from her soil, and
gave her peace and tranquillity for a period of nearly three years.
On the fourth of July, 1776, six days after the battle, President
Rutledge officially visited the garrison on Sullivan's Island, for the
purpose of returning thanks to them for their gallant conduct in
defence of the fortress. It was upon this occasion that, looking
around him with an eye beaming with exultation, and kindling with
pride, he broke forth into one of those fiery and impassioned harangues
to which the inspirations of genius, warmed into life by the glow of
passionate feeling, can alone give utterance. Pointing to the azure
banner which now floated in triumph over one of the bastions of the
fortress, he singled out from the ranks the gallant soldier who had
planted it there amid the fire of the British cannon, and after pronouncing a beautiful encomium upon his heroism, gracefully presented
him the sword which he ungirded from his own side.
A cotemporary of Rutledge * had the good fortune to meet him
many years afterwards, on this very spot, and he has recorded the
words he then uttered-his eye kindling with delight, and his voice
trembling with emotion, as the recollections of other days clustered
thick around him. " I remember," he exclaimed, "the engagement,
as if it were fought but yesterday! I remember my perfect confidence in Moultrie! I have all the scene before me, too, when I
visited the post to express the thanks of the country to the heroes
who defended it.  There stood Moultrie-there Motte-there Marion,
Horry, and the intrepid band whom they commanded. I addressed them with an energy of feeling that I had never before
experienced; and if ever I had pretensions to eloquence, it was at
that moment." The same gentleman who has given this account,
adds, that Rutledge, becoming animated as he spoke, as though his
old companions in arms and in council were immediately before him,
"delivered himself in an eloquent and impressive strain of eulogy, so
perfectly fascinating, that had his first address but borne a shadow
of resemblance to it, there could not have been a man among his
auditors who would not have been proud to die for liberty and his
country."
On the very day that Rutledge visited Fort Moultrie to express
* Mr. Alexander Garden. See his Anecdotes of the Revolution.




120             LiVE'S OF THE CHIEF-JUSTICES.
the thanks of a grateful country to its heroic defenders, the American Congress at Philadelphia, declared the colonies FREE AND INDEPENDENT STATES. The news of this great event arrived in Charleston
at a most auspicious period. It found the minds of the people fully
prepared for it. There was no longer any talk of an " accommodation" with Great Britain. The threatened invasion of South Carolina, and the glorious defence of Fort Moultrie, had rendered accommodation impossible. The declaration was received with every
demonstration of joy, amid the firing of cannon and the ringing of
bells, and was publicly read to the troops under arms. In transmitting it to the Legislature, Governor Rutledge said, "It is an
event which necessity had rendered not only justifiable, but absosolutely unavoidable. It is a decree now worthy of America. We
thankfully receive the notification of, and rejoice at it; and we are
determined at every hazard to endeavor to maintain it, that so, after
we have departed, our children and their latest posterity may have
cause to bless our memory."  In response to the President's address,
the General Assembly expressed "the joy and satisfaction" with
which they had received the intelligence, and their hearty approval of
the Declaration of Independence.
The General Assembly was dissolved on the 21st of October of
this year, and a new election held, agreeably to the Constitution.
The result of the election was the return of nearly all the old members. The Assembly met on the 5th December, and soon after reelected Rutledge President of the State, and Col. Laurens VicePresident.
During the period of a year and upward, in which he continued to
discharge the duties of this office, but little of interest occurred in
South Carolina. A formidable Indian invasion was briskly met and
successfully repelled, and the savages, attacked on all sides, sued
for peace. A treaty between them and the State was soon after
signed, by which the Indians ceded a considerable part of their territory, and the frontier settlement thereafter continued to remain
in undisturbed tranquillity.  Throughout the entire State business
revived, and agriculture flourished.  Commerce increased.  Ru tledge's administration was everywhere successful and fortunate. So
much tranquillity reigned in every part of South Carolina, says Dr.




JOHN RUTLEDGE.                      121
Ramsay, that after the departure of the British fleet and army, in
July, and the termination of the Cherokee expedition, in October,
1776, the bulk of the people was scarcely sensible of any revolution,
or that the country was at war.
But this tranquillity was about to be broken. A more formidable
invasion was preparing against the southern states than the futile
attempt in 1l]6, and the people of South Carolina were about to
experience in its most fearful and appalling shape, the horror of civil
war. Before entering upon this narrative, however, it is proper to
glance at the change which, in the mean time, occurred in the form of
the new State government, inasmuch as the subject is intimately connected with Mr. Rutledge's history.
The temporary Constitution, as has been observed, was ratified in
March, 1776. It was designed to last only until an "accommodation of the differences between Great Britain and America should
take place.."  The Declaration of Independence rendered it necessary to adopt a new and permanent Constitution and form of government.  This was the work of the deliberative branches of the
Legislature during part of the year 1777, and having been completed, it was finally passed into a law in March, 1778, and presented to the President for his ratification. Rutledge disapproved
the proposed plan of government, and refused to give it his assent.
Unwilling, however, to obstruct the wishes of the people as expressed through their delegates, he tendered his resignation as President, leaving the Legislature to choose another executive magistrate to carry out their demands by the approval of the proposed
Constitution.
The reasons of his refusal to approve this measure were expressed
in a speech of some length, delivered to both houses on the occasion of his resignation. These reasons do not appear to be entirely
satisfactory, and would probably fail to convince any one at this day
of the correctness of his position. The new form of government differed from the old in some important particulars. Not to mention
the change in the appellation of the commonwealth from colony to
State, and of the chief-magistrate from President to Governor, there
were some essential and fundamental alterations proposed.  Thus
the legislative body was reduced from three to two branches. The




122             LIVES OF THE CHIEF-JUSTICES.
second branch, instead of being elected by the Assembly from their
own body, were to be elected by the people; and a rotation was
established in the office of Governor and the other principal offices
of the State. Rutledge refused his assent to the bill on the ground
first of a want of power to pass it;* and secondly, admitting the
power, that the system itself was objectionable. tHe thought the
people " preferred the present mode of electing a legislative council
to that which is offered for electing a senate, probably because it
appeared more likely that persons of the greatest integrity, learning
and abilities, should be chosen by and from amongst these representatives when assembled, than by electors in their several districts."
Remarking upon the policy of the change proposed, he says  " Certain it is that systems which in theory have been much admired, on
trial have not succeeded; and that projects and experiments relative
to government are of all schemes the most dangerous and fatal.
The people having adopted such a Constitution as appeared to them
most perfect, when it is not even surmised that any grievance or
inconvenience has arisen from it, and when they are satisfied with and
happy under it (which I firmly believe they are), if we had authority,
I should conceive it neither politic, expedient, nor justifiable to
change this form for another, especially as I think that the one proposed will not be better than, or so good as what we now enjoy; and
whether it would or not, is a speculative point which time only can
determine."
Rutledge thereupon resigned his office of President, and recommended the election of some person who would be able to give the
necessary assent and ratification to the new Constitution.  The Legislature accepted his resignation, and  immediately elected  Hlon.
Rawlins Lowndes, President, who soon after gave his assent to the
Constitution, which thus became the fundamental law of the State.
Mr. Rutledge now retired for a brief period from the public service, although we are assured on good authority that his resignation
did not in the least " diminish his popularity."  This is evident in
* There is some force in this objection. The Legislature was certainly not
elected with a view of framing a new Constitution. But the difference between
a mere legislative act, and the passage of a fundamental law or Constitutional
provision, was not so well understood at that day as it is now.




JOHN RUTLEDGE.                      123
the fact that soon after, in a. time of real danger, when a formidable
invasion threatened the State, and when gloom and darkness overspread the whole country, he was recalled, and again replaced at the
helm.
In this time of general alarm, says the historian of South Carolina, John Rutledge, by the almost unanimous voice of his countrymen, was called to the chair of government.  Although he had
opposed the adoption of the new system, he did not hesitate for a
moment to accept the trust, and as Governor of the State took the
oath of fidelity to the Constitution. With characteristic promptness and energy he immediately set about devising means for the
defence'of the country. The British General, Prevost, with two
thousand men, had crossed over into Carolina, while General Lincoln, with the main body of the American army, was commencing
offensive operations in Georgia.  A  small force under General
Moultrie lay at Black Swamp, between Prevost and the capital of
South Carolina. Rutledge, in the capacity of Governor and commander-in-chief, summoned the State militia to his camp at Orangeburgh, near the centre of the State, and put himself at their head,
prepared to march wherever the public exigencies required. From
this camp he dispatched Col. Simmons, with a thousand men, to reinforce Moultrie. Before the juncture was effected, M\oultrie retreated to Tulifinny Bridge, keeping between the advancing British army
and Charleston. Prevost followed, apparently with the design of
attacking Charleston, and Rutledge thereupon set his whole force in
motion, with the view of joining Moultrie at Tulifinny, and disputing
with the British the possession of the capital. On the second day of
his march he received advices that Moultrie had abandoned his post
and was slowly retreating before a superior British force toward
Charleston. This intelligence changed the plan of Gov. Rutledge,
who immediately marched with all the forces under his command to
the defence of the capital.
Moultrie and Rutledge reached Charleston about the same time,
the 9th and 10th of May. Their arrival gave hopes of a successful
defence, particularly as by the efforts of Lieutenant-Governor Bee
and the Council, the town had been placed in a respectable state
of defence on the land side. This confidence was increased a day or




124             LIVES OF TIIE CHIEF-JUSTICES.
two after by the arrival of the gallant Pulaski, with his legionary
corps, almost at the same moment that the advance guard of the
British aplpeared on Charleston neck.
The American forces, however, were far inferior to the British,
and it seems doubtful whether they would have been able to sustain
an assault upon their lines. It was supposed that General Lincoln,
with the main army, was in pursuit of Prevost, but his position was
entirely unknown. In this emergency it was of the utmost importance to the Americans to gain time, and accordingly a conference
was opened with General Prevost on the subject of a capitulation.
The British General offered " peace and protection" to the inhabitants, and, to such as declined to submit, that they should be received as prisoners of war. T;is was refused by the garrison as dishonorable, and an interview between the officers of the army proposed to confer on terms. It is somewhat surprising to find at this
conference, the officers of the garrison proposing " a neutrality during the war between Great Britain and America; and that the
question whether the State shall belong to Great Britain, or remain
one of the United States, be determined by the treaty of peace between these powers."  It seems a confession on the part of South
Carolina of utter inability to contribute to the general defence of
the States. Still more surprising is it to find this proposition rejected by General Prevost, who claimed that " as the garrison was
in arms, they must surrender prisoners of war."  This was refused,
and the garrison and citizens of Charleston determiinng to defend
their works to the last extremity, prepared to sustain an immediate
assault. All night the garrison stood to their guns, and the people
remained in a state of suspense, expecting each moment an attack
by the enemy. The morning relieved their apprehensions. The cry
of "the enemy is gone," resounded along the lines, and Prevost was
seen in full retreat.  Intelligence had probably been received by
him of the arrival of Lincoln, and the threatened assault was abandoned. Count Pulaski pursued the retreating British with his cavalry, but they crossed the Ashley river before he came up with them.
The capital was again for a brief period rescued from the hands of the
enemy.
The unsuccessful attempt of Prevost was followed the next year




JOHN RUTLEDGE.                      125
by a more systematic and formidable attack.    The capture of
Charleston was now threatened in earnest.   Sir Henry Clinton,
sailing from New York with a powerful and well-appointed army
of twelve thousand men, landed on the 11th of February, 1780,
within thirty miles of Charleston. Gov. Rutledge, with an insufficient garrison, under the command of Lincoln, was at his post for
the defence of the town. The militia came in slowly; supplies were
far from abundant; the aid ordered by Congress for the defence of
Charleston had not arrived; every thing seemed favorable for the
enemy; and had Sir. Henry Clinton on his arrival marched at once
upon the town, it would doubtless have fallen at a blow.
In this emergency the assembly, then in session, acted with much
spirit.  They resolved unanimously that Charleston should be defended to the last extremity.  Soon after it was determined to
clothe the Governor and his Council with an absolute dictatorship,
and accordingly they delegated " till ten days after their next session, to the Governor, John Rutledge, Esq., and such of his Council
as he could conveniently consult, a power to do every thing necessary for the public good, except the taking away the life of a citizen
without a legal trial;" after which the Assembly adjourned. Armed
with this formidable power, the Governor immediately placed himself in co-operation with the military authority in command of the
town. He ordered the militia to rendezvous, but the call was disregarded. Thereupon he issued a proclamation requiring "such of
the militia as were regularly drafted, and all the inhabitants and
owners of property in the town, to repair to the American standard,
and join the garrison immediately, on pain of confiscation."  But the
proclamation produced as little effect as the former order. The
approach of the British army seemed to have chilled the hopes and
paralyzed the minds of the inhabitants.
Rutledge and Lincoln, however, did not yet despair. What men
could do was done by them. The lines were increased and strengthened-a citadel erected, and works thrown up on all sides of the
town. But it seemed to be manifest even before the batteries of the
British were opened, that resistance was hopeless. Notwlithstanding
every exertion to reinforce the garrison, only four thousand troops
could be collected within the lines.  They were too few to defend




126             LIVES OF THE CHIEF-JUSTICES.
the extensive works around the city; the works themselves were
weak and badly served with artillery, and the fall of Charleston
seemed certain.  Then it was that on the pressing solicitation of
Lincoln, it was decided that in order to preserve the civil and executive authority of the State, in the event of the fall of the capital,
Governor Rutledge and three of his Council should retire, and
Lieutenant-Governor Gadsden with the other five of that body should
remain within the lines. It was thought that the presence of the
Governor, clothed as he was with dictatorial power, was necessary
in the country, not only to raise levies for the relief of the capital,
but to organize a new resistance in the event of its fall. Accordingly on the 12th April, Gov. Rutledge, with    Messrs. Charles
Pinckney, Daniel Huger, and John L. Gervaise, left Charleston.
On the same day the British batteries were opened; and on the
12th May, General Lincoln, after a stout resistance, surrendered.
The wisdom of the Assembly in delegating plenary power to Rutledge and such of his council as he "could conveniently consult,"
was now apparent. It was the sole power, executive, legislative, or
judicial, left remaining of the new government; and although for
some time after the fall of Charleston it was scarcely anything more
than the shadow of a name, yet it was still a rallying point for the
patriots, or at least it might become such at some future and more
auspicious day.  Rutledge endeavored  to collect the militia and
march to the relief of Charleston. Failing in this, he attempted
to make a stand on the north side of the Santee, and rally forces in
sufficient numbers to renew the struggle for the dominion of the
State. Several parties of Americans, including three hundred Continentals of the Virginia line, under Colonel Buford, had advanced
into the northern part of the State, but after the fall of the capital,
and the rapid approach of the British northward, they retreated
toward  North   Carolina.  Tarleton's  brigade  having  overtaken
Buford's command, barbarously massacred the greater portion of it,
after a feeble resistance, and even after the men had sued for quarter,
and surrendered. On every side the royalists were triumphant-not
a single company of Americans was in the field —and the war in
South Carolina was apparently at an end.
But even in this gloomy crisis the restless and indomitable spirit




JOHN RUTLEDGE.                        127
of John Rutledge, unbroken by defeat, and still hopeful of success,
was meditating new plans for the defence of the country.  Driven,
with scarcely an escort, by Tarleton's dragoons, beyond the frontiers
of his native State, he hastened with all despatch to solicit succor
from the States of North Carolina, Virginia, and from Congress.  A
detachment of fourteen hundred Continentals was already on its
march towards the South, under the command of the brave and chivalrous De Kalb. The appeals of Gov. Rutledge to North Carolina
and Virginia, seem to have been successful, for each of those States
detailed a body of militia to co-operate with the Continental army;
and on the 15th of August, Gen. Gates, who had been assigned to
the Southern department, found himself near Camden at the head of
an army of three thousand five hundred effective men. The forces
under Lord Cornwallis, who had been left in command        of the
British after Sir Henry Clinton's departure, were far inferior in
point of numbers, but admirably disciplined, and flushed with
victory. Gates, in the full prestige of his late triumph at Saratoga,
rashly confident in himself and in his own fortune, risked a battle
and lost it.  His defeat was total. It was more than a defeat-it
was a rout-almost an annihilation.  Such a terrible overthrow had
not been sustained by any American General during the war.*
Gates fled from Camden to Htillsborough in North Carolina, where
he attempted to rally the wreck of this unfortunate army.  Here, it
seems, he was met by Governor Rutledge.    The appearance of the
American army-the army which Rutledge had so fondly hoped was
destined to effect the liberation of South Carolina, was pitiable in
the extreme.  Nothing but the mere wreck, the tristes reliquiti, of
that army, remained; and in its destruction Rutledge witnessed the
ruin of those hopes he had so warmly and so ardently cherished.
But the eager reproach, if he had any to make, must have died
upon his lips as he encountered the commanding general.  The pride
* The main error of Gen. Gates seems to have consisted in his rashness in
risking a battle without taking the necessary precautions in case of disaster. His
arrangements on the field appear to have been skillfully made, and it was certainly no fault of his that he could not make the Virginia militia stand fire, or the
North Carolina militia face the British bayonet. Had his whole force consisted of
Delaware and Maryland Continentals, the issue of that unfortunate day would
have been far different.




128             LIVES OF THE CHIEF-JUSTICES.
of Gates had been crushed-the iron had entered his soul-hle was a
humbled and a broken man. IIe had seen in a day the laurels of
victory wither upon his brow; he had rashly reached out his hand to
pluck the tempting fruit, and it had turned to ashes upon his lips.
Gates, in his little camp at Hillsborough, was an object of sympathy,
not of reproach.  The conqueror of Burgoyne, who had returned
laden with the spoils of Saratoga, had become the fugitive of Camden.
It was the spectacle of the vanquished Hector:
Hei mihi! qualis erat! quantum mutatus ab illo
Hectore, qui redit exuvias indutus Achillis.
Immediately after the defeat of Gates at Camden, news of a
fresh disaster reached the ears of Rutledge. This was the surprise
and dispersion of the corps of General Sumpter, who for some time
past had carried on a successful partisan warfare against the British
and tories in South Carolina. That gallant officer, on hearing of
Gates' defeat, began a rapid retreat up the Wateree river, with
three hundred prisoners and a quantity of captured stores. But he
was unable to escape the march of Tarleton, who had been dispatched from the victorious British army in pursuit. The Americans, having been four days without sleep or provisions, were surprised at Fishing Creek, and completely dispersed. The three hundred prisoners were liberated, and all the stores recaptured. South
Carolina again lay prostrate and powerless beneath the foot of the
invader.
These repeated disasters would have overcome a man of less firmness and courage than Rutledge. But he did not despair-he did
not cease to hope and to labor. Placing himself in communication
with the remains of Gates' army, he applied all his energies and
influence to the task of re-organizing that army, and keeping it in
the field. His services, in this respect, were invaluable; and their
worth was duly estimated by the penetrating judgment of General
Greene, on his taking the command, as I shall presently have occasion
to notice.
The admirable discernment and sagacity of Rutledge were displayed in a remarkable degree, in his estimate of the character and
ability of others. His keen glance penetrated through the ranks of




JOHN RUTLEDGE.                      129
the army, and selected for the highest trusts those active and vigorous partisan leaders, who, by means of their own indomitable energy
and unaided resources, revived the war against the enemy, brought
hope to the minds of the despairing, and contributed, in no small
degree, to the final triumph. By virtue of his authority as governor
and commander-in-chief, he commissioned SUMPTER, as a brigadiergeneral, when, after the fall of Charleston, that indefatigable and
gallant soldier, penetrating into the thickets and swamps of South
Carolina, with his handful of adherents, entered upon that successful
and active career which we have seen checked, but by no means
closed, by his misfortune at Fishing Creek. IIe conferred, also, the
same elevated -rank upon PICKEXS and upon FRANCIS MARION, the
most famous partisan leader in our revolutionary annals, whom we
have seen commencing his service as a captain in one of the first
regiments raised in South Carolina, and between whom and Rutledge
the most intimate confidence subsequently existed. The same quick
perception of high military endowments led him to discover the
great capacity of Col. Morgan, and to urge successfully upon Con'
gress the claims of that gallant officer to be made a Brigadier-General. These claims were recognized; the commission was issued;
Greene, on his arrival at the southern camp, found Morgan at the
head of his riflemen in Gates' army; and, dividing his forces,
entrusted him with a separate command. The glorious victory of
the Cowpens followed, in which the haughty Tarleton, at the head
of a superior force, for the first time was made to bite the dust.
The result was highly honorable to the American arms, and while it
covered Morgan and his troop with renown, furnished proof of the
wisdom  and discernment of both Rutledge and the commanding
General.
It appears that Gov. Rutledge remained with the army after the
defeat of Gates on the 16th of August, 1780, up to the time of the
arrival of the new commander, General Greene.   Heretofore the
selection of a commander-in-chief in the southern department had
been made by Congress. General Lee had been assigned to this
post in 1176; General Lincoln, a brave, experienced, and meritorious officer, took the command during the campaign which resulted in
the unfortunate capitulation of Charleston; and Gen. Gates, the
9




130             LIVES OF THE CHIEF-JUSTICES.
most distinguished officer in the service, succeeded him in that unfortunate campaign which ended in the rout at Camden. The duty of
selecting a commander-in-chief in the southern department was now
imposed by Congress on Washington. It was observed at the commencement of this sketch that the wisdom and sagacity of Washington were never displayed in a more striking manner than in his ap
pointments to places of high official trust and responsibility. Upon
the present occasion, his discriminating judgment amounted almost
to prescience. His choice fell upon Nathaniel Greene, an officer
whose subsequent brilliant career merited the handsome compliment
passed upon him by the officers of the army in a series of resolutions,
expressing the articles of their faith, one of which was to the effect,
that " Nathaniel Greene was born a General."
The American army had moved down from        Hillsborough to
Charlotte, and Greene arrived at head-quarters on the 2d of December, 1780. Here, it seems, he met Rutledge. Each of these distinguished men, at a glance, appreciated and comprehended the
other.  Each looked upon the other as a man of commanding
genius and great capacity, and the confidence of mutual esteem and
respect was at once established between them. To Greene, Rutledge appeared "the first character" he had ever met with; and to
Rutledge, the commanding general was from the outset, as he afterwards officially expressed it, "the great and gallant General
Greene."
It required, however, all the energies and resources of these two
distinguished men to reassure the troops, to furnish them food and
clothing, and, in short, to reconstruct from nothing, the southern
army. Offensive operations seemed to be desperate and chimerical.
The entire force of the American army at the south was but about two
thousand men, continentals and militia.  They were without pay
and almost without clothing; to say nothing of ammunition. The
procuring of provisions was of itself a most difficult matter.
Impressment seemed to be the only source; and the country had
been so ravaged that all which could be obtained, even in that way,
was far from sufficient. In order to carry on the business in the
least offensive way, and not to alienate the people, the duty of
impressment was transferred from the military to the civil authority.




JOHN RUTLEDGE.                       131
In this emergency, the assistance of Rutledge was of the highest
importance. Greene expresses his indebtedness to him soon after the
battle of the Cowpens, in one of his communications, from which I
extract the following passage: "The situation of these States is
wretched, and the distress of the inhabitants beyond all description.
Nor is the condition of the army more agreeable. We have but few
troops that are fit for duty, and all those are employed upon different
detachments, the success of which depends upon time and chance. We
are obliged to subsist ourselves by our own industry, aided by the influence of Governor Ittledge, who is one f the first characters I ever met
with. Our prospects are gloomy," &c.
Notwithstanding this almost desperate condition of affairs, Greene
took the field during the winter of 1780, with his almost naked
troops, without food, without clothing, marching without shoes over
frozen and flinty roads, which gashed the feet of his soldiers, marking with blood every step of their progress, and commenced that
series of masterly and brilliant movements which finally resulted in
the liberation of South Carolina, and the capture of Cornwallis in
Virginia.*  The great qualities of Greene were coolness, courage, and
caution. He entered into action with no arrogant confidence of
success, nor without counting the cost of disaster, and making preparations for retreat. Unlike his predecessor at Camden, he never
went into battle without leaving his baggage and stores a sufficient
distance in the rear. Hence defeat never disconcerted or disheartened him; though beaten, he was never vanquished; at every
overthrow, he arose, Antaeas-like, prouder and stronger from the fall.
I shall not follow him during that toilsome and terrible campaign,
which, ending with the brilliant battle of Eutaw  Springs, virtually destroyed the British power in the South, and liberated the
State of South Carolina. It comprised a series of marches, battles,
and military maneuvres, where success would have done credit to the
genius of the most skilful and veteran commander.
Rutledge, it seems, was at the camp at Haw River, March 8th,
* After the battle at Guilford Court House, though Lord Cornwallis was ostensibly the victor, he retreated to Wilmington, and from thence, instead of returning to South Carolina, retired into Virginia, where he remained until captured at
Yorktown.




132              LIVES OF THE CHIEF-JUSTICES.
1781. From    this point, he addresses a letter to General Marion,
declaring his intention of proceeding to Philadelphia in a few days,
with a view of procuring, if possible, some supplies of clothing for
the militia, whose distress for want of it gave him great concern.*
This mission was undoubtedly undertaken at the urgent request of
General Greene, and was the more readily undertaken, because he
says his remaining could be of little service to the State, inasmuch
as it had become impracticable to return immediately into South
Carolina, or even if that were possible, to re-establish a civil government there, for some time. His watchful care over the provincial militia is also manifest in this communication. He speaks of
sending to Marion some blank commissions, and, in the mean time,
authorizes him to give brevets, and in order to maintain sufficient
authority over the officers in his brigade, empowers him to remove
any of them, and appoint others in their stead. He has sent, he
says, some linen, to be distributed among Marion's, Sumpter's, and
Pickens' brigades, as a free gift from the States, and requests Marion
to send him, by express to Gen. Greene, a list of such articles of
clothing as he may need, with a view of obtaining them   at Philadelphia.
On the retreat of Cornwallis to Virginia, General Greene at once
marched into South Carolina, and, in conjunction with those active
partisan leaders, Marion, Sumpter, and Pickens, commenced offensive
operations against the British and tories.  IIls efforts during the
spring and summer were crowned with great success, and the enemy
were dispossessed of most of their posts in the upper country, and
driven back into the vicinity of Clarleston.  The time had now
arrived for Rutledge to return, and again establish civil government
over the wasted and desolate country.   Clothed with ample power
for that purpose, he set about this important work with I is clharacteristic ability and energy; and sustai:ed as he now was by the
* His mission to Philadelphia seems to have been not ent'lrlly unsulccessful.
The following is an extract from the Journal of Congress, of June 20th, 1781:
"On motion of Mr. Matthews, seconded by Mr. Bee, Resolved, that thie board of
war be directed to furnish Governor Rutledge with four wagons for transporting
clothing to the State of South Carolina, which wagons, when dischar;ed by the
said Gov. Rutledge, to be delivered over to the orders of the cormmanding general
of the Southern army."




JOHN RUTLEDGE.                        133
strong arm of a military force, his proclamations and ordinances contributed greatly to the re-establishment of order and law among the
citizens of the State.
His first proclamation is issued under the great seal of the State,
from the high hills of the Santee, on the 5th of August, 1781, and
is directed aga.inst those marauders, who, under pretence of indemnifying themselves for losses of property, or that such property
belonged to tories or the enemies of the State, had committed and
continued to commit "most wanton and rapacious acts of plundering."  In case such plundered property is not immediately restored,
or these practices are repeated, he threatens "speedy and effectual
punishment" on the offenders; and he charges the civil officers of the
State to bring all such culprits to justice, and commands the military
officers to lend their aid to the civil power.  By such timely and
vigorous measures, Rutledge in a short time succeeded in re-establishing order and security in such parts of the State as had been
recovered from the enemy. Magistrates were appointed,* property
secured, and confusion and anarchy gave place to order and regular
government.
Some of the measures of Rutledge, at this period, were harsh and
severe, but necessarily and justly so. Clothed with an arbitrary and:
dictatorial power, he retaliated with a heavy hand upon the royalists. Nor did he shrink from bringing odium upon his own authority, among the friends of the State, by resorting to impressment,
when necessary, to sustain his lieutenants in the field, or the army
of Greene in its now successful career against the enemy. In order
to raise money and means, he had undertaken, on his return from
Philadelphia, to put in operation the ideas he had obtained from
that able financier, Robert Morris, in relation to the establishment
of a bank; t but his route lying through a tract of country where
the inhabitants were little acquainted with commerce, he unfortu* So early as the 13th August, 1781, and before the battle of Eutaw, he writes
to Marion, expressing his intention of appointing Ordinaries in each District, to
prove wills, grant letters testamentary, and transact other business within the
jurisdiction of such officers; and requests Marion to recommend suitable persons
who will undertake the offices of Ordinary for the Georgetown, Cheraw, and
Charleston Districts.
t See subsequent sketch of Chief-Justice Ellsworth.




134              LIVES OF THE CHIEF-JUSTICES.
nately, as Greene informed Morris, " met with none who were willing to interest themselves in a bank."   Money or its equivalent,
however, must be had,* and Rutledge did not hesitate to resort to
the law of extreme necessity. We find him soon after, directing
the seizure of a large quantity of indigo, and placing it to the
credit of. the army.  "I have appointed Captain Richardson," he
writes to Marion, "to procure indigo and specie for public use, and
request that you will give him every assistance in your power, to aid
him in this business.  If he should want an escort, or any military
aid, you will be pleased to furnish him." In regard to reprisals
upon the British and royalists, his course was no less decided and
bold.  It was, however, always governed     by motives of public
policy, and never by a spirit of wanton revenge. He scorned to
imitate the barbarities of Tarleton, or that cold-blooded act of
cruelty which disgraces the memory of Lord Rawdon, the murderer
of the gallant Hayne.   That " last and stinging outrage," as it has
been justly called, might well have caused the flame which had been
kindled in Rutledge's bosom    to  "burst forth   with  consuming
energy."  But we look in vain for any " comprehensive system   of
reprisals," or act of retaliation, which is not strictly justified by the
laws of war, as well as in accordance with an enlarged and liberal
policy. Thus, just before the battle of Eutaw, when the British
ordered the wives and families of the prisoners who had been taken
at the capitulation of Charleston, to withdraw from the State, Rutledge retaliated by sending the families of the loyalists and adherents of Britain, within the enemy's lines at Charleston.  "Justice
to our friends," he remarks in a letter to Marion, "whose wives and
families the enemy have sent out of the State, and policy require
that we should send into the enemy's lines the wives and families of
all such men as are now with and adhere to the British."     Alnd
although the death of IHayne had already taken place, and Rutledge
himself had witnessed the horrible outrages committed by the infu* The utter destitution of the army and the great scarcity of money are shown
in a letter from Rutledge to his favorite lieutenant, Marion, in charge of one of
the military districts of the State. It is dated soon after Rutledge's return: "I
entirely forgot, when I saw you last,": he says, " to mention what I intended before we met, that if a little hard money, 30 or 35 guineas, would be useful for
getting information, or other service, I have this sum ready for you."




JOHN RUTLEDGE.                     1l5
riated royalists, yet he immediately adds: " I lament the distresses
which many innocent women and children may probably suffer by this
measure, but they must follow the fate of their husbands and parents.
Blame can only be imputed to the latter, and to the British commanders, whose conduct, on the principle of retaliation, justifies this step,
which, all circumstances considered, is an indispensable one."  He
then directs Marion to give the necessary orders to enforce the measure within the district of his brigade.
The impressments ordered by Rutledge, in virtue of his supreme
civil authority in the State, were carried out with as much leniency
and system as the nature of the case allowed. This authority he
held in his own hand, and never suffered it to be executed except
under his own warrant. Accordingly, we find him sharply rebuking
Col. Horry, who, it seems, attempted to execute such a power
beyond the instructions he had received. "I know of no authority,"
he says in a subsequent letter to Marion, "that any continental
officer, or any other person, whoever he may be, has to impress in
this State. Gen. Greene, it is true, did, before my return, direct
him (Col. Horry) to impress, but he has never (I believe, and indeed
I am well persuaded of it) since my return, give any such power to
any one. IHe knows better."  Rutledge then laments the abuse of
this power, which furnished so just a cause of complaint to the people, and directs Marion, with whom he seems to be constantly advised,
and in whose judgment he reposed the most unlimited confidence, to
correct this abuse, as far as it might be practicable, within his district: "I find every authority may be abused, and perhaps that
which I have given on this head may be, also. Therefore, to cut
the matter short, wherever you find that it is wantonly exercised,
and an oppressive and improper use is made of it, within the district
of your brigade, I give you full authority to order the officer
attempting to impress such subjects to cease from it, or to have them
restored, if impressed. It would give me great pleasure to redress
every encroachment on the liberties of the people; and I shall certainly do so as far as my power extends, in any of the cases which you
say you will mention to me when we meet."
The celebrated battle of Eutaw was fought on the 8th of September, 1781. Governor Rutledge was present in this engagement,




136               LIVES OF THE CHIEF-JUSTICES.
and acted in the staff of General Greene.       The good conduct of
the South   Carolina militia and State troops on that day, was a
matter of pride and satisfaction to their commander-in-chief.     The
militia, under the orders of Marion and Pickens, formed a portion
of the front line, and the eye of Rutledge lighted up with exultation
as it witnessed the courage and firmness with which they advanced
under the fire of the British, delivering seventeen rounds before
falling back for support upon the second line, formed of the Maryland and Virginia Continentals.     The South Carolina State Corps,
under the gallant Colonel Henderson, covered the left, and behaved
with equal spirit and gallantry. Their good conduct on that day
was such as to deserve a special notice in the resolutions of Congress,
one of which expressed thanks " to the State corps of South Carolina,
for the zeal, activity and firmness by them exhibited, throughout the
engagement." It must be added, that the North Carolina militia,
forming also a portion of the front line, on this occasion, behaved
with great gallantry and spirit.*
* It is scarcely possible to account for the defection and shameful conduct of
the provincial militia in some of the actions during the Revolution. At the unfortunate battle of Camden, the North Carolina militia were placed in the centre
and the Virginia militia, under the gallant General Stevens, on the left. As Stevens was leading his brigade to the attack and had advanced within fifty paces of
the British column, the latter charged with a cheer, and the Virginians, throwing
down their arms, fled in the utmost disorder. The greater part of the militia of
North Carolina followed, without firing a shot, leaving the Maryland and Delaware Continentals to sustain the brunt of the battle. At the battle of Guilford
Court House the same mortifying circumstance took place. Greene had formed
three lines, placing the North Carolina militia in the front, the Virginia militia in
the second, and that ever reliable and heroic corps of Maryland Continentals, with
the Virginia Continentals, in the rear. As the British advanced, and while yet
distant 140 yards, the North Carolina militia gave way, most of them without
firing a shot. The Virginia militia behaved better, perhaps under the good influence of the precaution taken by General Stevens, who had posted some riflemen
twenty paces in the rear of his brigade, with orders to shoot every man who
should leave his post.
The Continentals, on the other hand, always behaved with the utmost gallantry
and spirit. They fought with the discipline of veterans, and the heroism of men
worthy to be free. It may with truth be said, that no better soldiers were ever
mustered into any service than those fourteen hundred gallant troops of the Maryland and Delaware line which marched under Baron De Kalb to the South, and so




JOHN RUTLEDGE.                        137
This decisive action forced back the enemy to their lines at
Charleston, extended the jurisdiction of the Americans over nearly
every other portion of the State, and may be considered as closing
the war in South Carolina.   The civil government, represented in
the person of Rutledge on the field, was literally re-established in
South Carolina, at the cannon's mouth, and amid the smoke and
carnage of battle.
Though the greater part of the State was thus rescued from British dominion, yet for some time after this, no other civil government was established than the authority vested in Rutledge's hands
as Governor and commander-in-chief.    Iis proclamations had all
the force and effect of laws, and they were sustained, as far as was
possible in those unsettled times, by the military.  Thus a few days
after the battle of Eutaw, we find him sending to Marion copies of
three proclamations, which he promises to have printed " as soon as
a press can be got to work."  Ile directs Marion to deliver to each
colonel copies, with orders to read them at the head of his regiment,
and circulate through the district. The same course was no doubt
pursued in regard to the other districts of the State, and in this
manner these proclamations or temporary laws were promulgated.
One of the proclamations referred to directed a suspension of the
acts  making Continental and State money a lawful tender, and
directing in future all fines to be paid in specie.  The worthlessness
of the paper currency, it seems, had rendered fines nugatory, and the
public exigencies demanded that where the law directed a penalty it
should be rigorously enforced.
About the same time also he writes to Marion for counsel and
advice in regard to a very important subject, namely, as to the policy of offering a free pardon to such as had joined the enemy, with
nobly sustained themselves after the flight of the militia on the fatal field of Camden. Every man was a hero, and those who fell, like the slaughtered Athenians
at Marathon, deserved their names inscribed upon a monument erected on the
field. "You may judge of the virtues of our small army," writes Baron De Kalb
a day or two before the battle, " from the following fact: we have for several
days lived on nothing but peaches, and I have not heard a complaint. There has
been no desertion." Such men, equally armed, under a general like De Kalb or
Greene, on a fair field, would have proved invincible to any thing but superior
numbers.




138             LIVES OF THE CHIEF-JUSTICES.
liberty to them and their families to return and occupy their possessions, on certain conditions. "This is a nice point," he observes,
" and I don't know how it will be relished by our friends. You
know mankind generally judge of the propriety of measures from
events."  The advice of Marion seems to have been favorable to the
proposed measure.  The proclamation was issued under the great
seal of State, at the American camp, at the high hills of Santee, on
the 27th of September, 1781.  It is a bold, but calm and dignified
production, setting forth frankly the condition of affairs in the State,
and alluding with confidence, but without arrogance, to the prosperous condition of the American cause, and the certainty of its
ultimate triumph. It offers full and free pardon for the offence of
bearing arms with, or adhering to the enemy, on condition that the
persons accepting shall within thirty days from date surrender them
selves, and engage to serve six months in the militia of the Stateexcepting, however, those who had signed the congratulatory addresses to Clinton and Cornwallis, those who held civil or military
commissions under the British government, and some others. The
proclamation closes with the following noble and dignified expressions: "At a juncture when the force of the enemy in this State,
though lately considerable, is greatly reduced by the many defeats
which they have suffered, and particularly at the late important
action at Eutaw; when they are dispossessed of every post and garrison except Charleston; when the formidable fleet of his most
Christian Majesty in Chesapeake Bay, and the combined armies of
the King of France and of the United States, under the command
of his Excellency General Washington, in Virginia, afford a wellgrounded hope that by the effort of their armies, this campaign will
be happily terminated, and the British power in every part of the
confederate states soon totally annihilated; it is conceived that the
true and real motive of the offer hereby made will be acknowledged.
It must be allowed to proceed not from timidity, to which the
enemy affect to attribute every act of clemency and mercy on our
part, but from a wish to impress with a sense of their error, and to
reclaim misguided subjects, and give them once more an opportunity
of becoming valuable members of the community, instead of banishing them, or forever cutting them off from it; for even the mcst




JOHN RUTLEDGE.                       139
disaffected cannot suppose that the brave and determined freemen
of this State have any dread of their arms.
"With the persons to whom this pardon is thus offered, the choice
still remains, either to return to their allegiance, and with their
families, be restored to the favor of their country, and to their possessions, or to abandon their properties in this State forever, and go
with their wives and children, whither, for what purpose, on whom
to depend, or how to subsist, they know not-most probably to experience in some strange and distant country, all the miseries and
horrors of beggary, sickness, and despair. This alternative is now
for the last time submitted to their judgment.  It will never be
renewed."
In a few'weeks several hundred of the royalists come out of the
British lines upon this proclamation, and greatly reinforced the
American militia.
The time was now approaching when Rutledge was to surrender
his dictatorship into the hands of those who had conferred it. No
General Assembly had convened in the State since the fall of
Charleston.  The time was auspicious for summoning together the
legislative body. Most of the civil officers of the State, and members of the Legislature, who had either fled or been captured, had
now found their way back, and the American army lay posted within
thirty-six miles of Charleston, the last stronghold of British power
in the State. Rutledge accordingly issued writs for an election of
members to a General Assembly, appointed by him to convene on
the th  th of January, 1782, at Jacksonborough, a small village on the
Edisto river, about thirty-five miles from Charleston.  A letter to
Marion, of the 23d of November, relates to this subject, and encloses
some of these writs for distribution.  They were probably distributed in the same manner through the other districts. The Governor
himself, by virtue of his extraordinary authority, prescribed the
mode of holding these elections, and the qualifications of the voters.
The polls were directed to be held in "the usual places," where it
was practicable, and in other cases as near as safety and other circumstances would permit. None were allowed to vote but such as
had never taken British protection, or having taken it, had rejoined




140             LIVES OF TIIE CIIIEF-JUSTICES.
their countrymen on or before the 27th of September, 1781.   All
others were excluded from the elective franchise.
Not only did Rutledge discharge the duty of convening this Assembly, but the care of making provision for its subsisben2cc seems
also to have exclusively rested upon him. In these primitive and
revolutionary days, members of the legislative body were doubtless
relieved from all concern of mind in regard to their per diem, but the
question whether they would be able to get any thing to cat or not,
might certainly become one of much more serious import. The providence of Rutledge had guarded against any misfortune in this respect. His mind was admirably adapted to the details of business
-small or great, he suffered none to escape him.   In a letter to
Marion two or three weeks before the opening of the Jacksonborough
Assembly, he writes: "I wish to procure twelve barrels of rice for
the use of the Assembly, at their intended meeting on the 8th of next
month.   Be pleased to have that quantity procured as high up
Santee River as it can be got, and let me know as soon as possible
where it is, that I may order wagons down to fetch it from thence
to Camden in time."  The idea of keeping members of the Legislature on an allowance of rice, may perhaps excite a smile in our day,
but no doubt the gentlemen for whom this provision had been made
were abundantly satisfied.  The revolutionary fire had swept over
the harvest fields of South Carolina, and to the civilian as to the
soldier, the certainty of obtaining rations at all was of vastly more
importance than their kind or quality.*  The men of Marion and
Sumpter had fared much worse in their hiding-places in the woods
and swamps.    De Kalb's gallant army had uttered no complaint
while marching under arms without any food, except half-ripe fruit,
for several days before the battle of Camden.  Greene's soldiers had
penetrated into South Carolina with little to eat, and almost as
naked as they were born-having green moss about their loins and
shoulders, to protect them from the galling effect of their belts and
knapsacks.  Perhaps we shall see these rice-fed members of the
* If the twelve barrels constituted the entire supply, their contents without
doubt would have measured the duration of the session with an accuracy as unerring as those ingenious constitutional provisions in some of the states which stop
the pay of the members after a limited number of days.




JOHN RUTLEDGE.                      141
South Carolina Assembly conducting themselves, in their legislative
capacity, with the same spirit which marked the action of the halfstarved, half-clothed troops of Greene and De Kalb, and the men of
Sumpter and Marion.
The Assembly convened at the appointed day and place. It presented, says a writer, the appearance of a parliament of feudal
barons. Many of its members, like Gen. Marion, were drawn from
the army, and most of them had seen service in the camp and the
field. Their deliberations were carried on under the protection of
the American cannon, for the army of Greene had been set in motion
to take a position between the place of their meeting and a British
post below. Rutledge met the two houses soon after the opening
of the session, and addressed them in a speech of some length, in
which, with rather more than his natural warmth of language and
asperity of temper, he alluded to the unprovoked outrages committed
by the enemy, the desolation which lawless violence and rapine had
brought upon the land, and the proud triumph which had finally
been achieved. Looking abroad as he did at the wide-spread ruin
and devastation around him-over a land thickly strewn with the
ashes of hamlets and villages destroyed, and still wet with the blood
of its sons, his natural impetuosity broke forth into something like
the language of bitter denunciation, and indeed we can well understand the burning indignation which prompted such sentences as
these:
"Regardless, therefore, of the sacred ties of honor, destitute of
the feelings of humanity, and determined to extinguish, if possible,
every spark of freedom in this country, they, with the insolent pride
of conquerors, gave unbounded scope to the exercise of their tyrannical disposition, infringed their public engagements and violated
their most solemn capitulations.  Many of our worthiest citizens
were, without cause, long and closely confined, some on board of
prison ships, and others in the town and castle of St. Augustine,*
their properties disposed of at the will and caprice of the enemy, and
their families sent to a different and distant part of the continent,
* His two brothers. Edward and Ilugh Rutledge, with Lieutenan-t-Governor
Gadsden and most of the civil and military officers, prisoners on parole, after the
fall of Charleston, had been seized by order of Cornwallis and transported to St.
Augustine.




142             LIVES OF THE CHIEF-JUSTICES..
without the means of support. Many who had surrendered as prisoners of war, were killed in cold blood; several suffered death in
the most ignominious manner, and others were delivered up to savages, and put to tortures under which they expired. Thus the lives,
liberties and properties of the people were dependent solely on the
pleasure of British officers, who deprived them of either, or all, on
the most frivolous pretences.  Indians, slaves, and a desperate
banditti of the most profligate characters, were caressed and
employed by the enemy to execute their infamous purposes. Devastation and ruin marked their progress and that of their adherents,
nor were their violences restrained by the charms or influence of
beauty and innocence. Even the fair sex, whom it is the duty of
all, and the pleasure and pride of the brave, to protect, they, and
their tender offspring, were victims to the inveterate malice of an
unrelenting foe.  Neither the tears of mothers, nor the cries of
infants could excite in their breasts pity or compassion. Not only
the peaceful habitations of the widow, the aged and the infirm, but
the holy temples of the Most High, were consumed in flames, kindled by their sacrilegious hands. They have tarnished the glory of
the British arms, disgraced the profession of a British soldier, and
fixed indelible stigmas of rapine, cruelty, perfidy and profaneness on
the British name. But I can now congratulate you, and I do so
most cordially, on the pleasing change of affairs, which, under the
blessing of God, the wisdom, prudence, address, and bravery of the
great and gallant General Greene, and the intrepidity of the officers
and men under his command, has been happily effected-a general
who is justly entitled, from his many signal services, to honorable
and singular marks of your approbation and gratitude.  His successes have been more rapid and complete than the most sanguine
could have expected. The enemy, compelled to surrender or evacuate every post which they held in the country, frequently defeated
and driven from place to place, are obliged to seek refuge under the
walls of Charleston, and on islands in its vicinity.  We have now
the full and absolute possession of every other part of the State;
and the legislative, executive and judicial powers are in the free
exercise of their respective authorities."
The whole of the address from which the foregoing extract is




JOHN RUTLEDGE.                       143
taken, breathes the same spirit. IIe speaks with confidence of the
preservation of the independence of the State, but earnestly urges
the raising and equipping of a respectable permament force.  lie
also calls the attention of the Legislature to the necessity of a thorough organization of the militia, to the state of the currency, and
some other matters of interest, among which, is the treatment
proper to be adopted toward such of the royalists as refused to
come in under the    proclamation.  "It is with you," he says,
"whether the forfeiture and appropriation of their property should
now take place."  But at the same time adds his opinion, that if
such should be the determination of the Assembly, "it will redound
to the reputation of this State to provide a becoming support for
the families of those whom you may deprive of their property."
This part of the suggestion in the Governor's speech, was promptly
acted upon. A law was introduced for confiscating the estates and
banishing the persons of the most active friends of the British Government, and for amercing the estates of others, as a substitution
for those personal services of which the country had been deprived.
Though the law was opposed by Gen. Gadsden, and other influential
members, it passed by a large majority.  It included two hundred
and thirty-seven persons and estates in the first class, and forty-eight
in the last.  This arbitrary and severe measure, though perhaps
strictly justifiable by the laws of war, has been generally disapproved since that time  Rlutledge was taxed by Cassi ls, a political
writer, with being the author of the act; but from the testimony of
one who was on the spot at the moment the bill passed,* there is
every reason to believe that, though approved, it certainly did not
originate with him. It is proper to add, that though the law was
in the first instance executed, yet its harsh features were afterwards
relaxed. In conformity to the treaty of peace and the recommendation of Congress, the Legis.lture permitted the greater part of the
exiles to return. Thirty-oiit were fully restored to their property
and citizenship, thirty-three were disqualified from holding any place
of trust within the State for seven years, and they, with sixty-two
others, were relieved from total confiscation, by paying twelve per
cent. on the equitable value of their property.
* Mr. Alexander Garden. See his Anecdotes of the American Revolution.




144              LIVES OF TIIE CHIEF-JUSTICES.
The Senate and the IHouse of Representatives returned separate
addresses to the Governor, responding in the warmest terms to the
sentiments contained in his speech. Each of these addresses contained, also, a flattering personal compliment, in the assurance which
it conveyed of the entire approbation with which his conduct was
regarded by the representatives of the people.    Upon this point
there seemed to be no dissenting voice.*     " It is with peculiar
pleasure," says the address of the Senate, " that we take the earliest
opportunity to present to your Excellency our unfeigned thanks for
your unwearied zeal and attention to the real interests of this country, and to testify our entire approbation of the good conduct of the
Executive since the last meeting of the General Assembly."    The
language of the Iouse of Representatives was no less flattering.
After alluding to the happy re-establishment of law and government,
it adds: "This auspicious change is in a great degree owing to the
prudence, firmness, and good conduct of your Excellency.   If anything can add to the sublime and refined enjoyment, which must
arise from  your Excellency's own reflections on your persevering,
unabated, and successful exertions towards rescuing your country
from the iron hand of oppression, be pleased, sir, to accept the most
sincere and unfeigned thanks of your grateful fellow-citizens."
The term for which Rutledge had been elected Governor had now
expired.  By an unfortunate provision of the Constitution, no person
was eligible to the office of Governor for more than two years out
of a period of six, and the State was therefore deprived, at this
important juncture, of his services, in an office in the discharge of
whose duties lie had displayed such great capacity.  The Legislature
thereupon proceeded to elect Christopher Gadsden, but that veteran
patriot, who had served the State in various stations for thirty
years, declined, on account, as he alleged, of the increasing infirmities of old age, and being satisfied that the times required the vigor
and activity of the prime of life.  He would cheerfully, he said,
* "' Above every other trait of character, it must redound to the honor of John
Rutledge, possessing dictatorial powers, that the justice and equitable current of
his administration, never engendered the slightest murmur, nor gave birth to a
single complaint. So mild, indeed, and conciliating were all his actions, that
obedience went hand in hand with command, and the ardor of zeal seemed rather
to solicit service than seek the means of avoiding it."-Garden's.necdotes.




JOHN RUTLEDGE.                      145
make one of a forlorn hope in an assault on the lines of Charleston,
if it was probable that with the certain loss of his life, the citizens
of South Carolina would be reinstated in the possession of their
capital. But he declined an office in which he feared he could render no good service. Thereupon, the Assembly chose the Honorable John Mathews, who was subsequently one of Rutledge's colleagues
on the bench, to the office of Governor. They also filled up the
vacancies in the different departments, and re-established civil government in all its branches.
Mr. Rutledge was not permitted to retire from the service of the
State.  On the termination of his Executive duties, he was at once
elected a member of Congress, and took his seat in that body on the
2d of May, 1782. In this situation, he was immediately called
upon to perform an extraordinary duty. The surrender of Cornwallis at Yorktown terminated the war of Independence; so, at
least, it seemed to the people and governments of the different
States, and very little further effort was made to carry on the contest. Such, however, was not the opinion of Congress, who manifested much solicitude on the subject. Fearing that'the general
apathy would encourage Great Britain to recommence the contest,
they delegated certain members of their body to make a proper
representation of the public danger to the respective States. To
this duty John Rutledge was assigned, on the 22d of May, 1182,
and in conjunction with George Clymer, he was instructed "to
make such representations to the several States southward of Philadelphia, as were best adapted to their respective circumstances and
the present situations of public affairs, and as might induce them to
carry the requisitions of Congress into effect with the greatest
despatch."  Under these instructions, it seems, the delegates were
permitted to address the Virginia Assembly.  The duty of course
devolved upon Rutledge, and, to use again the language of Dr.
Ramsay, he "drew such a picture of the United States, and of the
danger to which they were exposed by the backwardness of the
particular States to comply with the requisitions of Congress, as
produced a very happy effect. The addresser acquitted himself with
so much ability, that the Virginians, who, not without reason, are
proud of their statesmen and orators, began to doubt whether their
10




146             LIVES OF THu   CIIEF-JUSTICES.
Patrick Henry or the South    Carolina Rutledge was the most
accomplished public speaker."  This speech, so highly eulogized,
like almost every other public effort of its author, has been lost. It
seems to have been premeditated, for Mr. Rutledge, in alluding to
some fact in regard to it, during the session, remarked that it was
delivered from " notes," which he had prepared for the occasion, but
that he had destroyed these notes immediately afterwards, as was
always his custom.
Rutledge and Clymer set out on this mission somewhere about the
1st June. It is probable that they did not go further south than
Virginia, or perhaps North Carolina.  Their instructions excused
them from visiting the States of South Carolina and Georgia, unless
they might " deem the public exigencies required." But previous to
leaving Philadelphia they were directed to make representations to
the State of Pennsylvania, which no doubt was done. What was
the success of this mission we believe remains unknown. The delegates were back again in their seats, June 27th, and on that day a
brief entry appears in the Journal, thus: "Mir. Rutlcdge and Mr.
Clymer having returned, made a report of their proceedings."  No
action seems to have been taken upon it. The important case of the
State of Pennsylvania against the State of Connecticut, was then
occupying the attention of Congress.  Mr. Rutledge appeared in
Lis seat in time to take a part in the deliberation of this question,
and to discountenance by his vote the principle that the representatives of either State should be allowed to sit during the argument
and decision of the case.*
It was in this Congress that Rutledge first met Oliver Ellsworth,
then delegate from the State of Connecticut.  Here, too, for the
first time, he met another gentleman, who subsequently became still
more celebrated-James Madison of Virginia.    Hamilton of New
York, was also a member of this Congress, and Wilson of Pennsylvania. Besides these gentlemen, he found here three or four members of the old Congress, which published the Ieclaration of Independence; namely, Dyer of Connecticut, Clark of New Jersey,
Floyd of New York, and Clymer of Pennsylvania.     The renewal
* This case was subsequently referred to a commission of judges appointed by
Congress, on which Rutledge was named, but he declined serving.




JOHN RUTLEDGE.                      147
of friendly acquaintance and intercourse with men like these, must
have been highly gratifying to Gov. Rutledge. They bad labored
together at the commencement of the struggle, and now, at its close,
fotund tlhemselves again united in the commonl cause.  They could
look back with a calm aind serene satisfaction over the fearful struggles and perils of the past, for the day was at length breaking, and
the distant port might be seen, far off, through the angry clouds and
over the raging sea.
But the danger was not yet passed.    The port was not yet
gained.  Every nerve must be strained, every rag of canvas set,
every man fit for duty summoned to the pumps, to keep the disabled
and half-wrecked vessel afloat until she could reach the harbor of
safety.  Dropping the figure, it is sufficient to remark here that the
confederacy rarely passed through a more critical period than during
this session of 1782 and 1183. It is true, actual hostilities had ceased
with the capture of Cornwallis, but the treaty of peace was not concluded till long afterward. Every thinlg was confusion, doubt and
discouragement.  The confederacy was utterly bankrupt, and its
credit annihilated. The public creditors were unpaid and clamorous.
The army, so long in arrearof pay, almost in a state of open mutiny;and that able and indefatigable financier, Robert Morris, whose
genius in the darkest days of the revolution had from nothillg created
resources to supply a bankrupt treasury and an empty army chest,
was now, in despair, about to resign the superintendence of what was
called the finances.
This gloomy position of affairs served to give a. more than ordinary degree of importance and interest to the deliberations of this
Congress; and when Rutledge took his seat, lie found staring him
and his associates full in the face, this great and monmentous question-a question overshadowing all others-one wlhich must be met
and could not be avoided-the question of the PUBLIC CREDIT.
In the deliberations upon this subject, Mr. Rutledge, in conjunction with Madison and Hamilton, acted a very prominent and influentialpart; and although his views differed fiomn those of the two
gentlemen last mentioned in many respects, yet he finally concurred
in the general plan agreed upon as a compromise, and submitted by




148              LIVES OF THE CHIEF-JUSTICES.
Congress to the States. A very brief statement will serve to explain
his position and views on this important subject.
The articles of the confederation provided that the general treasury should be supplied " by the several States in proportion to the
value of all land within each State," &c.; but the States had not
complied with the requisitions, and it had been, as we have seen, an
object of Rutledge's mission to the South, to induce the States to
carry out the requisitions of Congress. It had been found troublesome, also, if not impossible to settle the proportion of contribution
of each State in this scale of land valuation; and the whole matter
had occasioned much warm debate and anxious deliberation in Congress.  The subject of the land valuation was now referred to a
grand committee of one from each State, of which Rutledge was a
member.   While the majority of the committee were convinced of
the utter impracticability of retaining this scale of contribution, Mr.
Rutlcdge seems to have favored it, and even to have sustained it
with some degree of pertinacity, until finally overruled by numbers.
The utter hopelessness of affairs, and the necessity of some step to
avert the dissolution of the confederacy, is evident from some of the
proceedings before this "grand committee."   Mr. Peters proposed
the almost desperate expedient of making "further applcations for
loans in Europe," remarking that money "must, if possible, be procured for the army."  Mr. Madison seconded it, adding that "it
was expedient to make the trial, because, if it failed, our sil6alion
could not le made worse."  A deputation from the army appeared
before the committee, who communicated the startling fact that
unless some provision was speedily made there was reason to dread
that a mutiny would ensue; and General McDongal, one of tlhe deputies, remarked that "the army were verging to that state which,
we are told, will make a wise man mad."*    The deliberations of the
committee seem to have resulted in very little beyond the appointment of a sub-committee, consisting of Hamilton, Madison and Rutledge, to report arrangements.  These various confecrences and discussions were continued from time to time with rno definite result.
On the 27th January, 1783, on Rutledge's motio;l, Congress went
into committee of the whole to conlsider the mlost cfcectual means of
Madison Papers, Vol. I. pp. 25C, 257.




JOHN RUTLEDGE.                     149
restoring the public credit. After a long and animated debate, and
a variety of propositions had been suggested, Rutledge moved a
resolution recommending to the several States to lay and collect a
duty of five per cent. ad valorem on all foreign goods, and a like
duty on prizes and prize goods condemned; such revenue to be applied to the payment of the foreign debt, the arrears of the army,
and the future support of the war, and no other purpose whatever;
and that the said duties so paid by any State into the treasury be
passed to the credit of such State on account of its quota of contribution.
This was something definite and positive; and if not the basis, was
at least suggestive of the plan finally agreed to for restoring the
public credit by obtaining fiomr the States the right for Congress to
levy and collect a tariff on foreign imports. The latter part of the
resolution was of course warmly opposed, and finally voted down.
The remaining part of the resolution, with some modifications and
additions, was, after a debate of more than a month, reported to
Congress by a select committee of five, to whom the whole matter
had been referred. The report was made on the 6th of March.
Mr. Rutledge was a member of this important committee. The
plan agreed upon to raise funds sufficient to restore the public credit
was that Congress should be empowered to lay an ad valoreml duty
of fve per cent. on certain foreign goods, as originally proposed by
Mr. Rutledge —also a specific duty on salt, sugars, teas, wines, &e.;
the avails of which should be applied to no other purpose than the
discharge of the debts contracted by the United States for the support of the war. And the respective States were also recommended
to provide some " substantial and effectual revenue " to supply their
proportion of $1,500,000 annually for twenty-five years, for a similar
purpose. This plan of revenue, with some slight amendments, passed
on the 18th of April, 1783, with the unanimous concurrence of all
the States except Rhode Island, and the vote of Mr. Hamnilton of
New York, who was indissolubly wedded to a plan of his own, which
he supposed more perfect.
As respects the proportion in which the States were to contribute,
a very important amendment was proposed to the articles of confederation. The land valuation, which we have seen Mr. Rutledge
strongly favored, was abandoned, and population adopted as the




150               LIVES OF THE CHIEF-JUSTICES.
basis of contribution.   This amendment is not the least interesting
part of this important act of legislation, inasmuch as it exhibits the
origin of that liberal compromise between the North and South in
regard to population and representation, which was subsequently
embodied in the federal Constitution.   Instead of the land valuation
as the basis of    contribution, the amendment proposed that the
charges which had been incurred for the common defence should be
defrayed out of a common treasury, supplied by the several states
"in proportion to the whole number of white and other free citizens
and inhabitants, of every age, sex and condition, including those
bound to servitude for a term    of years, and three-fifths of all other
persons not comprehended in the foregoing description, except Indians not paying taxes in each State."*
* The history of this amendment is somewhat curious. The original report
of the committee on the subject of revenue, made on the 9th of March, 1783, proposed that contributions from the States, instead of being in proportion to the
value of the land, should be in proportion to the whole number of inhabitants of
every age, sex or condition, except Indians. This of course was opposed by the
Southern States, and the compromise of three-fifths finally agreed to. In the debate on this subject, March 27th and 28th, Mr. Wilson of Pennsylvania stated
that the ratio of land valuation, instead of population, had been agreed to in the
articles of confederation, because of the impossibility of compromising the ideas
of the eastern and southern States as to the value of slaves compared with the
whites. Mr. Clark of New Jersey, who had been present at that time, stated
that the southern States would have agreed to numbers in preference to the value
of land, if half their slaves only should be included; but that the eastern States
would not agree in the proposition.
The clause having been recommitted, the next morning after this discussion
the committee reported that two blacks be rated as one freeman. The report
being read, Mr. Wolcott was for rating them as four to three. Mr. Carroll as
four to one. Mr. Higginson, Mr. Holton and Mr. Osgood. as four to three. Mr.
Rutledge said, for the sake of the object, he would agree to rate slaves as two to
one, but he sincerely thought three to one would be a juster proportion. A question for rating them as three to two was then put and lost, and the paragraph was
thereupon postponed, it appearing to be the general opinion, says Mr. Madison in
his minutes, that no compromise would be agreed to. Subsequently Mr. Madison
remarked, that in order to give a proof of the sincerity of his professions of liberality, he would propose that slaves be rated as five to three. Mr. Rutledge seconded the motion. Mr. Wilson said he would sacrifice his opinion on this compromise, and the question for five to three passed in the affirmative by a vote of
all the States except Rhode Island and Connecticut, and Massachusetts divided,
Madison Papers, Vol. I p. 421-4.




JOHN RUTLEDGE.                      151
Notwithstanding Rutledge's partiality to the land valuation, we
find him, on this occasion, actuated by those comprehensive and statesmanlike views of policy, and that liberal spirit of concession which
marked all his actions, assenting to the proposition as thus agreed
upon, and cordially sustaining the act as matured by the committee.
I have said that it was a mutual concession and a compromise, and
the original of that other compromise which in almost identical language is found embodied in the federal Constitution. The committee
appointed to prepare an address to the States to accompany the act,
consisting of Madison, Hamilton, and Ellsworth, so also viewed it,
as appears by the following passage in their address: "The only
material difficulty which attended it in the deliberations, of Congress
was to fix the proper difference between the labor and industry of
free inhabitants, and of all other inhabitants. The ratio ultimately
agreed on was the effect of mutual concessions; and if it should be
supposed not to correspond precisely with the fact, no doubt ought
to be entertained that an equal spirit of accommodation among the
several legislatures, will prevail against little inequalities which may
be calculated on one side or the other."  Thus we see at this early
period the representatives of the North uniting almost unanimously
with the representatives of the South, in a spirit of " mutual concession," and with the most elevated, liberal, and patriotic views,
agreeing upon a rule of contribution between the different States
founded upon the ratio of population, which was subsequently adopted into the federal Constitution as the basis of representation.
During this session of Congress, the treaty of peace with Great
Britain was communicated to the House. The conduct of the commissioners in violating, as it was alleged, their instructions, was
severely criticised, particularly by Mr. Mercer, a member from Virginia, who declared that he " felt inexpressible indignation at their
meanly stooping, as it were, to lick the dust from the feet of a nation whose hands were still dyed with the blood of their fellow
citizens." Rutledge stoutly defended the ministers, and maintained
that the separate article, which was especially complained of, did
not concern France, and therefore there was no necessity for communicating it to the French minister. The debate was warm and
animated, and was renewed from day to day for several days. On




152              LIVES OF THE CHIEF-JUSTICES.
a subsequent occasion Rutledge assumed bolder grounds.     He insisted that the ministers had done right, and had maintained the
honor of the United States after Congress had given it up-placing
their justification upon a principle which no other man on the floor,
perhaps, would have had the courage and independence to avow,
namely that instructions ought to be regarded only when tiee public
good requires it.  As for himself, he remarked, he would never be
bound by them when he thought them improper.*
Mr. Rutledge shared very largely and efficiently in all the business of this Congress.  He was a member of nearly every important
committee, and his name appears frequently with those of Hamilton,
Madison, or Ellsworth, on the same committees. The journals show
also that scarcely any question was decided, upon which his vote is
not recorded.  He seems to have served in this Congress until about
the middle of June, 1783, when Mr. Jacob Read having appeared
as a delegate from  South Carolina, he returned home. A few days
after this period, Congress was surrounded and threatened by the
mutinous soldiers from  Lancaster, and the authorities of Philadelphia being unable to protect that body, it was abruptly adjourned,
to meet again at Trenton, in New Jersey.
Rutledge was elected Judge of the South Carolina Court of
Chancery in the year 1784.    His associates were John Mathewst
and Richard Hutson. This was under the new organization of the
Court. Indeed, up to the year 1784, there had been no regular
Courts of Equity in South Carolina. They had been originally held
by the council of proprietors, and subsequently by the representatives of the royal authority.  It is somewhat remarkable, that on
the formation of the new Constitution in 1776, this feature of mon* Madison Papers, Vol. II. p. 410.
t This true patriot and upright judge was one of the earliest and most devoted
friends of the liberty of his native State and country. IIe served with distinction
in the Continental Congress, and was a member while the subject was contemplated, if not agitated, of purchasing peac. with Great Britain by the sacrifice of
the Carolinas and Georgia. This intrigue was strenuously and effectually opposed
by Mr. Mathews, supported by his colleagues, Mr. Bee and Col. Eveleigh.
At the expiration of'tiledge's term as Governor, Mr. Mathews was elected to
that office, and served with great credit to himself and profit to the State. His
selection as Chancellor was a proper and deserved compliment to exalted worth
and disinterested services.




JOHN RUTLEDGE.                      153
archy was preserved. By that instrument the Lieutenant-Governor
and Privy Council were vested with equity jurisdiction. This state
of things continued until the year 1784, when, by the passage of a
bill reorganizing Courts of Equity, jurisdiction in all cases in equity
was vested in a Chancellor and two associates. Tais bill was drawn
by Rutledge. It provided that each of the three judges, or Chancellors, should hold a court for the hearing of causes in equity, with
the right to any party to appeal from a decree to the three Chancellors in bane. This constitution of the Courts of Equity continued until the year 1808, when two more judges were added to the
Court, givilg the right of appeal from a single judge to a full bench
of five, whose decision was final.
The first term of the Court was held at Charleston, on the 14th
day of June, 1784. All three of the judges were present. Many
petitions were presented, and some business transacted, but no
causes were heard, and no decisions made which involved any principle of importance. At the next term, held in September, many
important cases were brought on for argument. At that time, however, it appears that decretal orders were made without stating the
reasons of the Court in writing, or the grounds of the decision, so
that very little information can be drawn from a number of the earlier cases.*  The proceedings seem to have been conducted very
much in the ordinary form, and upon similar principles with the
English Courts of Equity. From the outset, the business of the
Court was transacted with the utmost dignity and decorum, and
participated in by the ablest members of the South Carolina bar.
A  very remarkable case, which created much interest, both on
account of the high character of the parties, and the novelty of the
questions presented, was brought to argument before a full bench, at
the March term   1185. About the year 1766, Ralph and John
Izard, two young men, heads of collateral branches, sprung from a
common ancestor, who early settled the country, entered into an
agreement that in case either of them died without issue, he should
bequeath the other the sum of five thousand pounds sterling, for the
purpose of keeping up the name and consequence of the family.
John Izard died without issue, and made no such provision in his
* 1 Desaussure's Ch. Rep. 107.




154             LIVES OF THE CHIEF-JUSTICES.
will, but left the bulk of his property to his sister Mary, the wife of
Arthur Middleton. Thereupon, Ralph Izard * filed a bill against
Arthur Middleton as executor of John Izard, praying a performance of the agreement, and the payment of the five thousand pounds.
This novel case was argued with consummate ability on both
sides, and by the most eminent lawyers of the State. William
Drayton and Judge Bee, Edward Rutledge and Charles Cotesworth
Pinckney, were the counsel engaged upon it, but neither the argument nor any portion of the evidence has been preserved.  Chancellor Mathews pronounced the unanimous opinion of the Court, dismissing the bill, partly for the reason that such a promise not being
reduced to writing was not binding, and partly, as it seems from a
note of the reporter, because the alleged agreement to make mutual
and corresponding wills was not fully made out by sufficient positive
and legal proof.t
The reported cases, in the decision of which Rutledge participated,
are mainly collected in the first volume of Desaussure's Chancery
Reports of South Carolina, and extend only through about eighty
pages of the volume. I do not find any written opinion or decision
by Rutledge, or indeed, of any of the othlcr judges, with the exception of three or four which appear to have been taken from Chancellor Mathews' notes.  Rutledge, however, seems to have been
present on the bench, and to have participated in all these decisions
up to the year 1790, except during the period of his absence at the
Convention in Philadelphia. The questions argued before him were
precisely of the same nature as those which usually occupy the
attention of other Courts of Equity-questions of fraud, of trust,
of the rights  of infants and married women, the construction of
wills, agreements, and other written instruments, the conveyance and
title of lands, and indeed almost every other question involved in
that extensive system of equity jurisprudence which had grown up
under the English Chancellors, and had been transferred in its full
maturity to the colony of South Carolina.
* This gentleman was a delegate in the Continental Congress, with Rutledge,
In 1782-3. The defendant, Mr. Middleton, was also a member of the dame deleg:tLion in Congress.
+ 1 Desaussure's Reports, 114.




JOHN RUTLEDGE.                           155
At the new organization of the Courts of law and equity, in the
month of February, 1791, Rutledge was elected Chief-Justice of the
Supreme Courts of Judicature of the State, thereby vacating his
seat on the Equity bench.      His associates were    Etdanus Burke,*
John F. Grimke, Thomas Waties, and Elihu Hall Bay, the accomplished reporter of the Court, all of them gentlemen of distinguished legal attainments, and of the very highest character and moral
worth.   In this respect, there was a striking contrast between the
judiciary under the State government, and the Colonial bench under
the appointment of the crown.      When Rutledge was at the bar,
prior to the revolution, the judges were mostly foreigners, holding
* Throughout the whole of the Revolution, says Mr. Garden, Judge Burke
acted a very conspicuous part. IHe was a steady and inflexible patriot and zealous
supporter of the laws. The people had not an advocate more ready to maintain
their just rights, nor a more prompt opponent whenever they manifested the
slightest disposition to licentiousness. He always meant well, though he frequently took an awkward way of showing it, and secured confidence by his unremitted
endeavors to deserve it.
Mr. Garden relates several anecdotes of this eccentric gentleman, some of
which exhibit a keen but rough and unpolished wit. Sending a challenge to a
person who had grossly insulted him, he thus expressed himself: "Sir, I must
insist upon your giving me immediate satisfaction for having so far imposed on
me as to make me believe for a single moment that you were a man of honor or
a gentleman."
In those primitive days when Burke first came to the bench, society, in the
back settlements, tolerated the practice of biting, gouging out eyes, &c. Burke,
while travelling his circuits, was in the habit of carrying pistols of extraordinary
size and calibre. Being asked the reason, he replied: " As the best specific for
the preservation of my eye-sight-country frolics too frequently producing blindness."
On the day before his death, being tapped for the dropsy, he asked his physician-" Well, Irvine, what am I to expect; is the decree life, or death?" "' Life,
my good fellow," said Irvine; "you are an Irishman, and will yet last a long
time."  " Then, by," said Burke, "I shall be the first thing that ever lasted
long in this house, after being once put on tap."
Burke was the writer, who, under the signature of Cassius, attacked the proscriptive act of the Jacksonborough Assembly, and accused Rutledge of being its
author. He was a strenuous opponent of the Federal'Constitution, but subsequently abandoned his opposition and gave it his full support. In 1799 he was
appointed to the Chancery bench, on filling up the vacancies occasioned by the
death of Chancellor Hutson and the resignation of Chancellor Mathews.




156             LIVES OF THE CHIEF-JUSTICES.
their commissions from the King. At the opening of the Revolution, William Hcnry Drayton was the only native South Carolinian
on the bench, and he, it seems, was there only by the temporary
appointment of the Lieutenant-Governor, and was actually superseded about the commencement of the troubles by an Englishman,
named Gregory.*   Prior to 1769 the Judges received no fee or
reward, and the character of the bench, composed as it was mainly
of gentlemen of good fortunes and estates, was comparatively good.
But subsequently to that period, and up to the time of the Revolution, with some few exceptions, the Judges were utterly unfitted for
the station, cither in character, talent, or learning. It is stated of
Chief-Justice Shinner, that he never opened a law  book until
he was actually on his passage to America. Mr. Garden, in his
Anecdotes, relates an occurrence whichl gives us some idea of the
qualifications and characters of these English judges. One of
them, Mr. Justice Futerel, having sacrificed too freely to Bacchus,
at a dancing assembly, lay extended on a bench, confused with
liquor, when, observing a gentleman pulling off his coat for the purpose of changing a waistcoat that had been accidentally soiled, he
leaped up, and putting- limself in a boxing attitude, exclaimed,
" Oh, damn you, if you are for that sport, I'm at home-come on."
The character of the South Carolina judiciary was redeemed when
her native sons were called to the bench. That pure and inflexible
patriot and able jurist, William Henry Drayton, as we have seen,
was the first Chief-Justice under the revolutionary government. In
the discharge of his duties, justice was administered with "discerning eyes," as well as "clean hands."  Nor did the judicial ermine
lose in the slightest degree its purity when, falling from him and
others who had worn it after him, without spot or blemish, it rested
upon the shoulders of John Rutledge.
The first case adjudicated by Judge Rutledge and his associates,
after his appointment as Chief-Justice of the law courts, was in the
Common Pleas, at the February session, 1I91. It was a prosecution
for forgery against a man named Welch, indicted under the assumed
name of Washington. The punishment of the offence by the laws
of South Carolina, was death, and the case, apart from the nature
* Drayton's Memoirs, p. 151.




JOHN RUTLEDGE.                      157
of the legal questions involved, attracted very great interest. The
prisoner, after a long and deliberate trial, had been found guilty;
whereupon his counsel gave notice to the Attorney-General that
they intended to move in arrest of judgment. On the 9th March,
1791, the motion was brought on before the Chief-Justice, Mr. Justice Bay and Mr. Justice Grinike, the two former of whom on that
day, for the first time, took their seats upon the bench. The guilt
of the prisoner had been established by the verdict, and the questions, of course, were purely technical ones, turning mainly upon the
sufficiency of the indictment.  An analysis of the very able argument in this case has been preserved in the report,* but involving, as
it did, questions of law merely, and as such interesting to the legal
profession alone, I shall not undertake to follow or review it in this
place. On the part of the prisoner, the argument was conducted by
Messrs. Holmes, Lowndes and Iall. It being a capital case, and
very great public expectations having been raised, and no gentleman of the bar being willing to volunteer against the prisoner, the
Attorney-General, Alexander Moultrie, applied to the Governor to
have counsel assigned, whereupon his excellency appointed   Col.
Read, who, with the Attorney-General, argued the case on behalf
of the people. The Chief-Justice delivered  the  opinion of the
Court, and it is on the whole, perhaps the best specimen we have of
his legal acumen and his mode of treating a purely technical question. IHe meets and examines each point taken Lty the counsel for
the defence with the utmost care and attention, and withal with
lawyerlike precision and accuracy, and shows, by a chain of unanswerable reasoning, and of the clearest illustration, that the objections raised are untenable. The opinion, in which the rest of the
Court concurred, is amply fortified by references to the sources of
the common law, and a copious analysis and conmparison of adjudged
cases. It was more full and circiunstantial than was usual with the
Chief-Justice, but being, as he remarked, a case of great importance
to the prisoner, and the public at large, he considrered it proper " to
state thus fully the reasons upon which our decision is founded."   It is
scarcely necessary to add, that the rmotion was overruled, and the
prisoner adjudged to undergo the full penalty of the law. The Chicf* 1 Bay's South Carolina Reports, 120.




158            LIVES OF THE CHIEF-JUSTICES.
Justice passed sentence of death upon him in a very " affecting address," as the reporter remarks, recommending him in "a very
pathetic manner to employ that little interval of life which remained,
in making his peace with that God whose law he had offended."
I shall not undertake to follow the course of Judge Rutledge
through the four years of his judicial service in the law courts of
South Carolina.  His demeanor was dignified, and his manner,
though somewhat distant and haughty, was courteous to the bar as
well as to his brethren of the bench. His judgments were strictly
impartial, and most of them, so far as we can now form an opinion
from such of the cases as were decided in bane and have been
reported, were in accordance with the principles of the common law.
Such, for example, was the judgment in one of the last cases discussed before him-the case of the creditors of Scott vs. Scottdecided in the spring of 1I95, and argued with very great learning
and ingenuity by Col. Read, on the one side, and Charles Cotesworth Pinckney on the other. The question in the case was whether
commissioners in a writ of dower could assign a widow the whole of
one of several tracts, or whether they were not bound to give her
one-third of each separate tract. Rutledge delivered the opinion of
the Court in this case, and by a very careful examination of old authorities and the strictest legal deductions, arrived at the conclusion,
which was concurred in by his associates, that the assigxment of
dower must be by metes and bounds, and of each tract of land in
severalty.
Most of the reported cases decided by the courts during this period involved questions of this nature-questions of common law,
the decision of which was to be governed by established legal maxims, and the principles of which were to be sought in the common
law of England as it stood at that time. Occasionally, however,
questions of a more novel and original character arose, in which the
court was left without the light of established principles, and the
authority of ancient precedents.
Thus, at the May term, 1791, in the case of Eden vs. Lcgard,*
we find Rutledge laying down the rule, that calling a man a mulatto
is a slander, per se, and actionable. The reason assigned is, that if
* 1 Bay's South Carolina Reports, 174.




JOHN RUTLEDGE.                          159
true, "the party would be deprived of all civil rights, and moreover
would be liable to be tried in all cases under the negro act, without
the privilege of a trial by jury."
The bar, as well as the bench, at this period, comprised gentlemen of unusual ability and eminence in their profession.      At the
head of these stood Charles Cotesworth Pinckney* and Edward
Rutledge, who are found opposed in almost every case of importance
argued in the Superior Courts.    The latter of these gentlemen continued his brilliant and honorable career at the bar, down to the
period of his election as chief-magistrate of the State.  In addition
to these may be mentioned the names of those eminent and able
lawyers, whose talents and learning illustrate the judicial records of
South   Carolina-Read,    Pringle, Desaussure, Lowindes, Moultrie,
Harper and Holmes.      With the advantage of the experience, the
learning and the abilities of such advocates at the bar, the labors of
* This distinguished gentleman was the son of Charles Pinckney, who twenty
years prior to the Revolution was a Judge of the Colonial Courts in South Carolina. Resigning his scat on the bench, Judge Pinckney took his two sons, Charles
Cotesworth and Thomas Pinckney, to England, for the purpose of completing
their education. Returning to America, and being admitted to the bar, Charles C.
Pinckney entered upon the practice of his profession. The revolutionary movements found in him a warm and decided advocate. He was chosen captain in the
first South Carolina regiment, and was afterwards promoted to the command of
it. Subsequently joining General Washington, he was received into the family
of the Commander-in-chief as one of his aids, and was present at the battles of
Brandywinc and Germantown. Returning to South Carolina on the second invasion of Sir Henry Clinton, he was entrusted with the command of Fort Moultrie;
and having been taken prisoner at the fall of Charleston, was, with many of tho
most distinguished sons of South Carolina, sent into exile at St. Augustine.
As an enlightened statesman and able lawycr, General Pinckney ranks unquestionably among the first men of the country. lie was an influential member of
the Convention which framed the Federal Constitution, and afterwa-rds of the
State Convention of South Carolina which ratified it. To the efforts of Pinckney
and Rutledge may be attributed, in a great measure, the success of the Constitution in the State of South Carolina. Gen. Pinckney was appointed, with Marshall and Gerry, to negociate with France in 1798. At the election of 1800, he
was one of the candidates for President and Vice-President of the Uniteed States
By consenting to unite his name with that of JefIferson, he would probably have
secured the vote of his State, which would have elected him to one of these
distinguished stations. As it turned out, however, the vote of South Carolina
was given to Mr. Burr, who thereupon was elected Vice-President.




160             LIVES OF THE CHIEF-JUSTICES.
the bench was rendered far less arduous. Every important question was the subject of full and accurate discLssion, and was
in turn subjected to the most rigid and severe examination by
the judges; and it may be added that the authority of these earlier
decisions in the State Courts of South Carolina, has always been
received and treated with the highest respect.
During the period of his service as one of the Chancellors of the
State, and without resigning his place upon the bench, Rutledge
consented to serve as a delegate from South Carolina in the Convention which framed the Constitution of the United States. His colleagues were Charles Pinckney, Charles Cotesworth Pinckney, and
Pierce Butler.  The Convention, although called for the second
Monday in May, 1787, did not organize until the 25th of that month.
On that day, a majority of the States being represented, George
Washington was unanimously chosen President of the Convention,
and was conducted to the chair by Robert Morris and John Rutledge,* when having delivered his brief and modest introductory
address, the business of the Convention commenced.
It is impossible to look over the list of the members comprising
this august body, without being deeply impressed with its exalted
character, its great dignity, and its commanding ability. With some
notable exceptions, such as Jefferson of Virginia, the Livingstons,
Clinton and Jay of New York, and the Adamses of Massachusetts,
most of the prominent statesmen and civilians of that day were members.t  Among the list are the names of three out of the five Associate-Justices of the Supreme Court originally nominated by Washington, namely, Rutledge of South Carolina, Wilson of Pennsylvania, and Blair of Virginia-the first Attorney-General of the United
States, Edmund Randolph, and the third Chief-Justice, Oliver Ellsworth. Besides these eminent and able jurists, the American bar
* Mr. Rutledge seconded the motion of Mr. Morris, nominating Gen. Washington President of the Convention. He expressed the hope that the choice would
be unanimous. The presence of General Washington, he observed, forbade any
remarks in regard to him, which on another occasion would be proper. Washington was thereupon unanimously chosen, by ballot, to preside over the Convention.
f Some of them, however, never attended, among whom was Patrick Henry
of Virginia.




JOHN RUTLEDGE.                     161
was represented on the floor of that Convention by such men as
Chancellor Wythe of Virginia, the Pinckneys of South Carolina,
Paterson of New Jersey, Luther Martin of Maryland, and Jared
Ingersoll of Pennsylvania.
The general proceedings of this Convention, forming so prominent
a part of the history of the country, and so deeply interesting to
every American, are tolerably familiar to the public, through the
journal of its proceedings, the brief minutes of Mr. Yates, and the
published papers of Mr. Madison.  It is to be regretted that, the
Convention having sat with closed doors, no extended report of its
proceedings from day to day was taken, and thus so few of these
deeply interesting discussions remain.
It appears from the Journal, as well as from other sources, that
Mr. Rutledge was not only an active, but one of the most influential
members of the Convention, and that many of his views were adopted
in the final compromise of the Constitution. I shall, however, allude
to the proceedings of this body, only so far as may be necessary to
indicate the general nature of Mr. Rutledge's services, and the views
which he entertained and advocated.
Immediately on the organization of the Convention, Edmund
Randolph, of Virginia, offered a set of resolutions embodying his
idea of the leading principles which should be established as the
basis of the new government. He accompanied them with an elaborate speech, in which he admitted that they were not intended for
a Federal Government, but meant a strong consolidated union, iu
which the idea of States should be nearly annihilated. Upon this
point the main and formidable struggle in the Convention subse.
quently occurred, namely, as between a Federal Union of the States
and a Consolidated Government.  Randolph's plan provided for a
national Legislature to consist of two branches, the first to be
elected by the people of the States in proportion to the quota of
contribution, or the number of free inhabitants, and the second to
be elected by the first branch out of persons nominated by the individual legislatures. It provided also for a national Executive with
a Council of Revision, and a national Judiciary.
At the same time the draft of a plan of Government was submit'
ted by Mr. Charles Pinckney of South Carolina. This plan, it is
11




162             LIVES OF THE CHIEF-JUSTICES.
presumed, had received the approbation of Rutledge, and the rest
of the South Carolina delegation, although it professed to express
the individual views of Mr. Pinckney alone. It was more specific,
and went more into detail than the propositions of Mr. Randolph,
and though Mr. Pinckney declared it was based on similar principles, yet there were some essential points of difference. Thus it
defined and specified the powers which should be vested in the new
government-and this enumeration of powers was subsequently, with
some additions and modifications, grafted upon the new Constitution. It provided also for the election of an executive magistrate,
with the title of President of the United States, to serve for a term
of years, and be reeligible, and contained various other provisions
which the Convention subsequently  approved. Like the Virginia
plan, however, it contemplated the election of a Senate by the
house of delegates, the senators to be taken from among the citizens of the respective States, although not nominated by the legislatures thereof. Each State was to be represented in the Senate as
well as in the popular branch, in proportion to the ratio of its population. Upon this point, that is to say, the equality of representation
in the national legislature, the serious struggle in the Convention
occurred, the large States insisting upon a representation in both
branches according to population, or wealth, or both, and most of
the smaller States contending as strenuously for an equal representation on the part of the States. Upon this question South Carolina
voted with the larger States.
Previous to its decision, however, the question as to the mode
of election, the term of service, &c., came up. On the ith of June,
on motion of Rutledge, the Convention went into consideration of
the mode of electing the second branch of the Legislature. Mr.
Dickinson of Delaware, moved that they be chosen by the legislatures
of the States, which after some debate was carried unanimously. Two
or three days after, the question came up as to the mode of appointing
the first branch of the national Legislature. Roger Sherman was
of the opinion that they should be chosen in proportion to the whole
number of inhabitants in each State. Thereupon Rutledge moved
as an amendment, "that the proportion of representation ought to
be according to and in proportion to the contribution of each




JOHN RUTLEDGE.                      163
State." This motion was subsequently postponed, and one by Judge
Wilson adopted, namely, that the representation of each State ought
to be from the number of its free inhabitants and three-fifths of all
other persons, except Indians not paying taxes.  The proposition
prevailed by a vote of nine States to two —New Jersey and Delaware voting in the negative.* In regard to the period of service of
the members of the first branch, Mr. Sherman moved one year,
Mr. Rutledge two years, and Mr. Jenifer, with whom     Madison
coincided, three years. The latter motion was carried, and it was
so contained in the resolutions subsequently reported to the House
from the Committee of the Whole.
Immediately on the determination of the question relative to the
ratio of representation in the popular branch of the national Legislature, it seems from the Journal, that Mr. Sherman, seconded by
Mr. Ellsworth, moved "that in the second branch of the national
Legislature each State have a vote."  The motion was negatived by
a vote of six States to five. Thereupon Mr. Wilson, seconded by
Mr. Hamilton, moved "that the right of suffrage in the second
branch of the national Legislature ought to be according to the
rule established for the first." This was adopted by precisely the
same relative vote.t  Thus, upon the start, the advocates of a
strictly Federal Government, which should preserve the unity, identity and influence of the respective States, were overpowered, and
the friends of a consolidated national Government, in which, to use
the language of Mr. Randolph, "the idea of States should be nearly
annihilated," carried the day. In this manner a series of resolutions
were elaborated in Committee of the Whole, and reported to the
House as the basis of the plan of a Federal Government. They
were altered, amended and modified from time to time, but without
essentially changing their complexion, until, on Saturday the 30th
June, the question again came up on the troublesome resolution* Rhode Island appointed no delegates to the Convention, and the New Hampshire members had not yet arrived.
t The following is the vote on Mr. Wilson's motion: Yeas-Massachusetts,
Pennsylvania, Virginia, North Carolina, South Carolina, Georgia-6.
JVays-Connecticut, New York, New Jersey, Delaware, Maryland-5. Hamilton, of New York, favored the motion, but his two colleagues, Yates and Lansing, who were opposed, cast the vote of the State.




164             LIVES OF THE CHIEF-JUSTICES.
" That in the second branch of the Legislature of the United States,
each State should have an equal vote."  Upon this a stormy and
highly exciting discussion arose.  Judge Wilson  contended with
great earnestness against the proposition.  It was sustained by
Ellsworth with an equal degree of zeal and ardor, and moreover with
a closer logic. But the Connecticut delegate encountered a more formidable opposition in the clear and pointed reasoning of Madison,
and the practical and plain common sense of Franklin.  "A joiner,'
said Franklin, resorting as usual to one of his homely illustrations,
"when he wants to fit two boards, takes off with his plane the uneven parts from each side, and thus they fit. Let us do the samewe are all met to do something." He then proposed the singular
expedient that in the passage of general laws in the second branch
of the national Legislature, each State should have a right of suffrage in proportion to the sums they respectively contributed, but in
all acts of authority and sovereignty the vote should be equal.
The debate grew warm and animated, nay, even stormy. Mr.
Bedford of Delaware took the floor, and amid the most intense
excitement, launched the arrows of his scathing invective and bitter
sarcasm on every side against the opponents of an equal representation.
" Even the diminutive State of Georgia," he exclaimed, turning to the
now hesitating delegation from that State, " has an eye to her future
wealth and greatness. South Carolina, puffed up with the possession
of her wealth and negroes, and North Carolina, are all, from different
views, united with the great States. And these latter, although it
is said they can never, from interested views, form a coalition, we
find united in one scheme of interest and ambition, notwithstanding
they endeavor to amuse us with the purity of their principles and the
rectitude of their intentions, in asserting that the General Government must be drawn from an equal representation of the people.
Pretences to support ambition are never wanting." * * * * *
"I do not trust you, gentlemen."  He continued with increased vehemence-" Where is your plighted faith? Will you crush the
smaller States, or must they be left unmolested? Sooner than be
ruined, there are foreign powers who will take us by the hand."*
The excitement was now intense. The period appeared to have
* See Yates' Minutes.




JOHN RUTLEDGE.                    165
approached when the Convention was about to be dissolved. As
Mr. Luther Martin subsequently remarked to the Maryland Legislature, it now seemed "scarce held together by the strength of a
hair."  It was a critical moment in the history of the country; on
the change of a single vote the most stupendous issues were suspended. In the midst of the confusion and.excitement of the debate,
the Convention adjourned without taking the question. Fortunately
an intervening Sunday afforded time for reflection and cool deliberation. At the reassembling on Monday morning the vote was taken
on Mr. Ellsworth's proposition for an equality in the second branch.
One of the two delegates from  Georgia wavered, not from any
change of view, but because of his fear that the Convention would
dissolve without further action, changed his vote, and thus divided
the State. The result was five States in favor of the proposition,
five against it, and Georgia divided. "There was," says Mr. Martin, "a total stand, and we did not seem very likely to proceed any
further."
At this critical moment there was found in the Convention a sufficient number of men of enlarged and liberal views, to change the
aspect of affairs. South Carolina, generously and magnanimously,
stepped forward as the mediator between the large and small States,
and proposed a compromise. Gen. Pinckney moved a select committee of one from each State, to take into consideration both branches
of the Legislature. The extreme men on both sides hung back.
"It is attempted again to compromise!" exclaimed Mr. Martin.
You MUST give each State an equal suffrage, or our business is at
an end."  Judge Wilson was equally obstinate and dogmatical on
the other side, and did not approve of the motion for a committee;
and even Madison observed that "committees only delay business,"
and thought the matter might be decided on the spot. But Roger
Sherman believed a committee was "necessary to set us right."
Gov. Randolph was in favor of its appointment, but considering the
warmth of debate exhibited on Saturday, confessed "no great
hopes that any good will arise from it;" and Mr. Gerry, believing
that accommodation was absolutely necessary, and that the world at
large expected something from the Convention, was desirous of seeing "if no concession could be made."




166             LIVES OF TIE CiILEF-JUSTICES.
The motion to appoint the committee was carried, and the memhers balloted for on the spot. John Rutledge was chosen on behalf of the State of South Carolina. Its composition was, in other
respects, also, singularly fortunate. The members selected from the
three large States, Gerry from Massachusetts, Franklin from Pennsylvania, and Mason from Virginia, were among the most moderate,
liberal, and conciliatory members of the Convention. The former of
these was chosen Chairman, and the committee immediately commenced its deliberations, the Convention having in the mean time
adjourned.
Mr. Yates of New York was a member of this committee of conference, and has briefly described its proceedings in his minutes.
Both sides, it seems, at first adhered to their original positions; Mr.
Yates thereupon gave his views in detail, he being, as is well known,
opposed to a consolidated, and in favor of a strictly federal union.
These remarks, he says, gave rise to the motion of Dr. Franklin for
the compromise which was subsequently agreed upon, and has become the foundation and corner-stone of the union of these States.
In the first branch of the national Legislature each State should
be allowed one member for every forty thousand inhabitants, this
branch to have the sole right of originating all money bills; in the
second branch, each State should have an equal vote. Such was,
substantially, the report of the committee. It was, says Mr. Madison, barely acquiesced in by the members of the committee who opposed an equality of votes, and it was evidently considered by members on the other side to be a gaining of their point. As a compromise it was certainly the most obvious one that could have suggested
itself, and perhaps the only one that could have been adopted. The
principle of representation according to population and numbers
established in regard to the first branch, secured the larger States;
while the equality of votes in the second branch preserved the identity and sovereignty of all the States. And yet the compromise, as
has usually been the case in regard to all the compromises of great national questions, failed at first to satisfy the extreme men of either
division. The report of the committee was received with many
marks of dissent. " The committee has exceeded its powers!" exclaimed Judge Wilson. Gouvcrneur Morris also warmly and ear



JOHN RUTLEDGE.                        167
nestly opposed it.  It is somewhat surprising to find Mr. Madison on
the same side; he was only restrained from " animadverting on the
report," by the respect he had for the members of the committee.
He could " see nothing of concession in it." *  On the other hand
some of the advocates of State sovereignty and an equality of representation in both branches, were far from satisfied.  Of this number
was Mr. Luther Martin of Maryland; while so great was the disgust of Messrs. Yates and Lansing, that they left the Convention and
returned home, convinced, as they remark in their letter to Governor Clinton, that no alteration was to be expected in the proposed
system to conform it to their ideas of expediency and safety, and
that their "further attendance would be fruitless and unavailing."
New York was therefore left for the remainder of the session without a quorum on the floor of the Convention.
Happy was it for the country that these extreme counsels did not
prevail;-that the Convention numbered among its members such
men as Franklin and Washington,t Sherman and Ellsworth, Mason
and Rutledge-men who were determined to complete the great
work for which they had assembled, and not to separate until that
work was done.t    How and in what manner it was accomplished
are matters of history. Though intimately connected with the pub* See Yates' Minutes of the Convention.
t Mr. Luther Martin, in his address to the Maryland Legislature, complains
somewhat sharply of the conduct of both Washington and Franklin. "During
this struggle to prevent the large States from having all power in their hands,"
he says, " which had nearly terminated in a dissolution of the Convention, it did
not appear to me that either of those illustrious characters, the honorable Mr.
Washington, or the President of the State of Pennsylvania, was disposed to favor
the claims of the smaller States, against the undue superiority attempted by the
large States; on the contrary, the honorable President of Pennsylvania was a
member of the committee of compromise, and there advocated the right of the
large States to an inequality in both branches, and only ultimately conceded it in
the second branch, on the principle of conciliation, when it was found no other
terms would be accepted. This, sir, I think it my duty to mention, for the consideration of those who endeavor to prop up a dangerous and defective system by
treat names," &c.: Mr. Mason of Virginia, declared in his place, that instead of returning home
to attend to his private affairs, " he would bury his bones in this city rather than
expose his country to the consequences of a dissolution of the Convention without
any thing being done."




168             LIVES OF THE CHIEF-JUSTICES.
lic life of the subject of this memoir, a minute detail of this history
would lead me beyond the limits and object of the present sketch.
The general posture of affairs in the Convention at this most critical
period, has been glanced at for the purpose of indicating the position occupied by Rutledge therein, and his share in the adjustment
of this momentous question. Having done thus much, I shall follow no further the regular proceedings of the Convention, but confine myself to a brief review of the particular services rendered by
Chancellor Rutledge in the Convention, and the opinions entertained
by him in regard to some of the more important subjects which,
from time to time, were brought up for discussion.
We have seen that he was a member of the committee of eleven,
which reported the compromise in regard to the representation of
the States in the national Legislature. The high confidence reposed
by the Convention in his abilities and character, led to his being
selected also to serve on several others of the most important colmmittees of the House. A series of resolutions having been agreed
to, after a protracted discussion, as the basis of the proposed Constitution, it was determined to refer them to a select committee of
five, for the purpose of drafting a Constitution. Rutledge was
chosen chairman of this committee. His associates were Randolph
of Virginia, Gorham of Massachusetts, Ellsworth of Connecticut, and
Wilson of Pennsylvania. On the 6th of August, 1178, Rutledge
had the honor of reporting to the Convention the first draft of a
Constitution for the United States. I am not aware that it can
now be determined that the whole of this draft, or if not the
whole, what particular part, is from his pen. It is not, indeed, the
Constitution as it was finally adopted-many changes and modifications having been made, in the discussions which subsequently took
place-but the outlines and substantial parts are there. The preamble is rather remarkable. It is in precisely the words of the draft
originally submitted by Mr. Charles Pinckney: "We the people OF
THE STATES of New Hampshire, Rhode Island, &c., do ordain, declare and establish the following Constitution, for the government of
ourselves and our posterity."  It is worthy of remark that on the
questions, separately taken, of agreeing to this preamble, it passed
unanimously in the affirmative.*  Subsequently, when the terms of
* See Journal of Convention, August 7th, 1787.




JOHN RUTLEDGE.                       169
the Constitution had been fully discussed and agreed on, a committee of five was appointed to revise the style, and arrange the articles of the Constitution. This committee consisted of Mr. Johnson,
Mr. Hamilton, Mr. Gouverneur Morris, Mr. Madison, and Mr.
King.* It is said that the style and finish, of the Constitution are
to be attributed in a great degree to the elegant pen of Mr. Morris;
to the same source, perhaps, may also be attributed the change of
phraseology in the preamble. Instead of the preamble of Mr. Rutledge's draft: " We, the people of the States," &c., which, we have
seen, passed unanimously in the affirmative, the committee of revision
reported the preamble: " We, the people of the United States, in
order to form a more perfect union, to establish justice, insure domestic tranquillity," &c.t
The Constitution, as reported by Mr. Rutledge, provided for the
election of a President of the United States by the national Legislature, by ballot, to hold office for seven years, and not to be eligible
a second time. This was a favorite proposition with Mr Rutledge,
except that instead of electing the Executive by the Legislature, he
wished him to be elected by the second branch or Senate alone.
Upon this subject he avowed his opinions in the Convention at a
very early day. When the question in regard to the Executive first
came up, there seemed to be an unwillingness on the part of members to express their opinion, and the resolution was about to be put
without debate. Rutledge thereupon arose and animadverted on the
shyness of gentlemen upon this and other subjects. It looked, he
said, as if they supposed themselves precluded, by having frankly disclosed their opinions, from afterwards changing them, which he did
not take to be at all the case. He then frankly avowed that he was
in favor of a single person as Executive, though he was not for giving him the power of war and peace.T Subsequently, on the same
day, he moved that the Executive be elected by the second branch
* Journal of Constitution, September 8th, 1787.
t Was this alteration regarded at the time in any other light than as a mere
revision of the language, and verbal alteration? It has been since thought significant in its application to the great question of power as between the federal Government and the States.
t Madison Papers, vol. ii. p. 762. Gov. Randolph strenuously opposed a unity
in the Executive magistracy.




170              LIVES OF THE CHIEF-JUSTICES.
of the Legislature. Mr. Sherman was for the appointment by the
Legislature; Mr. Wilson for an election by the people of the States
through the medium of electors; Mr. Ellsworth of electors appointed by the State Legislatures; Mr. Gerry was opposed to all these
plans, and offered one of his own, which is certainly remarkable for
its novelty.  He was for giving to the Legislatures of the States
the right to nominate candidates, and to the electors chosen by the
people the power of appointment; he was, however, not clear that
the people ought to act directly, even in the choice of electors.*
The question of the appointment excited much discussion in the Convention, and much change of opinion was manifested in regard to it.
Mr. Rutledge, it seems, did not press his proposition of an election
by the second branch, but adhered strenuously to the appointment
by the national Legislature, and the ineligibility of the Executive
for a second term. The Convention at first sanctioned this mode by
a unanimous vote. The vote was subsequently reconsidered, and it
was resolved that the national Executive should be appointed by
electors, chosen by the State Legislatures. This resolution was also
reconsidered, and the Convention again resolved to elect the Executive by the national Legislature; that he should serve for seven
years, and be ineligible a second time. In this shape it went to the
committee of detail, and was reported in Rutledge's draft of a Constitution. But the plan was again altered by the Convention, which
finally agreed to the mode of election as it now stands, namely, by
electors appointed in each State, in the manner its Legislature shall
direct.
Rutledge was also in favor of limiting the power of the Executive,
not only in regard to the question of his right to make peace and
declare war, but also to some extent in regard to his authority to
* Madison Papers, vol ii. p. 770. Mr. Gerry may be called the Sieyes of the
Convention. His mind was active and acute, but somewhat too fond of refinements and abstractions. His plan, though less artificial than the ingenious system
which was offered to Bonaparte by Sieyes, was still such as might have originated in the brain of that famous philosopher, who to use his own expression,
had " carried the science of politics to perfection."
Mr. Gerry, though opposed to both monarchy and aristocracy, was in favor of
having the members of the first branch appointed by the State Legislatures, from
a certain number of persons nominated by the people in the respective districts.




JOHN RUTLEDGE                        171
appoint to office. Thus, he contended that the appointment of the
national Judiciary should never be entrusted to one person; "the
people," he remarked, "will think we are leaning too much to
monarchy." In his opinion, the Judiciary should be chosen by one,
or both branches of the Legislature. He thought, too, that there
was no necessity for establishing any national tribunal, except a
single supreme one, as a kind of appellate court, the State tribunals
deciding in all cases in the first instance.*
But perhaps the opinion of which he was the most tenacious, and
which he advocated with the greatest earnestness and the utmost
sincerity of conviction, was that the proportion of representation of
each State in the national Legislature, should not be based upon
population, but should be in accordance with the quota of its contribution.  In sustaining this proposition Mr. Rutledge advanced a
very extraordinary doctrine, namely, that property was the principal
object of society, and, therefore, the most correct and just basis of
representation. This doctrine had been first broached on the floor
of the Convention by Gouverneur Morris, a gentleman of great brilliancy and acuteness of mind, as well as versatility of talent, who
leaned strongly to the side of aristocratic institutions and government.t  " Life and liberty," said Mr. Morris, " were generally said
to be of more value than property. An accurate view of the matter would, nevertheless, prove that property was the main object of
society. The savage state was more favorable to liberty than the
civilized, and sufficiently so to life. It was preferred by all men who
had not acquired a taste for property, &c. If property, then, was the
main object of government, certainly it ought to be one measure of
the influence due to those who were to be affected by the government."  To this conclusion Mr. Rutledge, in a measure, assented,
remarking that " The gentleman last up had spoken some of his sentiments precisely. Property was certainly the principal object of society," &c. He thereupon moved that the suffrages of the States be
proportioned by the sums paid toward the gceral revenue by each
* Madison Papers, vol. ii. p. 792.
t Mr. Morris did not hesitate to avow " that his creed was that there never
was, nor ever will be a civilized society without an aristocracy."-Debates in Convention, Madison Papers, vol. ii. p. 1043.




1'2             LIVES OF THE CHIEF-JUSTICES.
State respectively. The proposition, however, found but little favor
in the Convention, and was negatived by a decisive vote, South
Carolina alone being in the affirmative.*
The views of Rutledge were freely and fully expressed, upon nearly
every question of importance which was raised in the Convention.
They were always frank, bold and independent. However erroneous
may have been some of these impressions, no one will deny that they
were the honest convictions of a mind which endeavored to bring
every proposition to the test of truth. No narrow and partial views
governed his course of action. He opposed with as much earnestness the motion of a friend and colleague, when he believed it wrong,
as if the proposition had proceeded from a part of the confederacy
whose interests were in direct conflict with his own. Thus when Mr.
Pinckney moved to clothe the national Legislature with power, " to
negative all laws passed by the several States, interfering, in the
opinion of the Legislature, with the general interests and harmony
of the Union," Rutledge warmly opposed the proposition. "This
alone, if nothing else," he exclaimed, "will damn, and ought to
damn the Constitution. Will any State ever agree to be bound
hand and foot in this manner? It is worse than making mere corporations of them, whose by-laws would not be subject to this
shackle."t  And so, too, when the same gentleman proposed an
amendment, "that no act of the Legislature, for the purpose of
regulating the commerce of the United States with foreign powers,
or among the several States, should be passed without the assent of
two-thirds of the members of each house," Rutledge, rising superior
to mere sectional considerations and the interests of the present moment, opposed the motion. A navigation act, he thought, would
bear hard for a little while on the southern States, but as the Convention was laying the foundation for a great empire, it ought to
take a permanent view of the subject, and not look at the present
moment only.T
It is, however, due to candor and the truth of history to say that
Rutledge stood firm and unyielding to what he esteemed the sub* Debates in Convention-Madison Papers, vol. ii. p. 1035.
t Madison Papers, vol. iii 1411.
t Madison Papers, vol. iii p. 1454.




JOHN RUTLEDGE.                      173
stantial interests of his section of the confederacy. Thus, though
assenting to the compromise proposed on the question of representation, he refused to yield to the proposal for the immediate prohibition of the importation of slaves. The people of North Carolina,
South Carolina and Georgia, he declared, will never agree to the
proposed Constitution, unless their right to import slaves be untouched; and the true question, therefore, he thought, was whether
the southern States should, or should not, be parties to the Union.
Finally, he acceded to the proposition that the importation of slaves
should not be prohibited prior to the year 1808; and when Mr.
Madison moved the consideration of a proposition for making amendments to the Constitution, Rutledge offered to add the provision,
which was adopted by the Convention, that no amendments which
should be made prior to 1808, should in any way affect the clause
of the Constitution relative to this subject.*
The labors of the Convention were brought to a close on the 17th
of September, 1787. On that day, we are told, Dr. Franklin rose
with a written speech in his hands, which his friend, Mr. Wilson,
read to the Convention. It was highly conciliatory. The object was
to induce the Convention unanimously to agree to the Constitution
as formed, or at least to sanction it, proforma, by the signature of
their names; and in order to avoid the scruples of any tender consciences, he proposed the following ambiguous form: "Done in
Convention by the unanimous consent of the States present," &c. The
motion was adopted by all the States except South Carolina, Gen.
Pinckney and Mr. Butler dissenting, which divided the vote of that
State. Notwithstanding this equivocal expression of assent, three
of the members, Messrs. Gerry of Massachusetts, and Randolph and
Mason of Virginia, refused to sign.t  All the rest of the members
present, including the whole of the South Carolina delegation, then
affixed their names, and the Convention adjourned sine die.
* Madison Papers, vol iii. p. 1536.
t Messrs. Yates and Lansing, it will be recollected, had left the Convention.
Besides these there were eleven other members of the Convention who had
attended during.the session, whose names do not appear affixed to the instrument.
Among these are Oliver Ellsworth and Luther Martin, the former of whom, however, was accidentally absent, as it is well known he was warmly in favor of the
Constitution.-See subsequent sketch of Ellsworth.




174             LIVES OF THE CHIEF-JUSTICES.
Rutledge and his associates returned to South Carolina, the firm
and ardent champions of the new Constitution. Their labors and
influence contributed doubtless, in a very great degree, to its ratification on the part of that State. On the 16th of January following, the subject was brought before the Legislature, on a resolution
to call a convention of the people to consider the Constitution. A
long and interesting debate followed-a debate characterized by as
much ability, perhaps, as any which occurred in either of the States
on this momentous question. The South Carolina Legislature, at
that period, was a body of the most exalted character. Nearly
every distinguished and eminent citizen of the State was a member.
Among them were the three Rutledges, John, Edward and Hugh,
the Pinckn-eys, Rawlins Lowndes, Pierce Butler, Robert Barnwell,
Dr. Ramsay, Thomas Bee, Judges Grimke and Burke, Chancellor
Mathews, and many others of equal respectability. The debate was
opened by Mr. Charles Pinckney, in an elaborate and masterly speech,
explanatory of the principal features of the new Constitution. The
discussion which followed soon developed the fact that the majority,
comprising most of the intellect and talent of the State, was
decidedly in favor of the ratification of the Constitution. The Honorable Rawlins Lowndes was the only gentleman of any considerable distinction, who as the representative of a minority, strong in point
of numbers, opposed the Constitution. He conducted the discussion
with much ability on his side, but was successfully met and answered
by Mr. Charles Pinckney, Charles Cotesworth Pinckney, Edward
Rutledge, Robert Barnwell, and Chancellor Mathews, who mainly
conducted the debate on the other side. Of course it was not to be
expected that with such an overwhelming force against him, AMr.
Lowndes could make a successful stand. He pressed his points,
however, with great shrewdness, and the utmost pertinacity. Chancellor Rutledge did not mingle in these debates to any considerable
extent, believing the convention to be the proper place for a full
discussion of the question. He took up the argument, however,
against Mr. Lowndes, in regard to the treaty-making power vested
by the Constitution in the Senate, and showed very clearly that no
solid r: asons could be given to justify the fears expressed by his opponent, that this power might be used to the subversion of the laws




JOHN RUTLEDGE.                     175
of the country and the public liberty.  Mr. Lowndes, far from
yielding the point, reiterated his proposition, and attempted to sustain it by additional arguments. This again called out Chancellor
Rutledge, who, after declaring the pleasure with which he had often
heard the gentleman, expressed astonishment at his perseverance on
the present occasion. His obstinacy, he remarked, brought to his
recollection a friend to his country, once a member of that house,
who said:  "It is generally imputed to me that I am obstinate;
this is a mistake; I am  not so, but hard to be convinced." Mr.
Lowndes had declared that his own sentiments were so opposed to
the voice of his constituents, that he did not expect to be a member
of the Convention. Alluding to this, and the preference which Mr.
Lowndes had declared for the confederation, the Chancellor expressed the hope that his opponent would be appointed, adding that
he " did not hesitate to pledge himself to prove demonstrably, that
all those grounds on which he dwelt so much, amounted to nothing
more than mere declamation; that his boasted confederation was
not worth a farthing, and that if Mr. Chairman was intrenched in
such instruments up to his chin, they would not shield him from one
single national calamity." Mr. Lowndes, however, does not appear
to have been a member of the Convention, and if Rutledge redeemed
his pledge, it must have been to some person other than that gentleman.
Notwithstanding the great preponderance of talent and influence
in favor of the Constitution, the resolution calling the Convention
was passed in the Legislature by a very close vote-only one majority-and it is also worthy of remark, that Mr. Lowndes himself,
voted in the affirmative.*
The Convention assembled at Charleston on the 12th of May,
1T88. Rutledge was a member, with both his associates on the
bench, and nearly every gentleman of distinction and talent in the
State. The assembly was composed of upwards of two hundred
members, and the Governor of the State, Thomas Pinckney, was
elected to preside over it. Mr. Charles Pinckney appropriately
opened the deliberations, as one of the delegates to the Federal Convention. His speech, upon this occasion, was a philosophical and
statesman-like exposition of the nature of government in general, a
* See Elliott's Debates on the Federal Constitution, vol. iv. p. 303.




176             LIVES OF THE CHIEF-JUSTICES.
comprehensive review of the governments of the various States and
the principles established therein, and a clear and forcible application of the subject to that new and untried system which the Federal Convention had agreed upon.* The discussion thus opened continued more than a week, and it is unnecessary to add that here, as
in every other proper place and on all suitable occasions, Chancellor
Rutledge was the eloquent advocate, and the firm, unwavering,
steadfast champion of the Constitution, substantially as it came from
the hands of its framers.
On the 21st of May, General Sumpter, who was opposed to the
Constitution, moved an adjournment of the Convention until the
20th of October, in order to give time for further consideration. This
motion, after considerable debate, was rejected by a large majority.
Two days afterwards the vote was taken on the question of ratification, and carried in the affirmative by a majority of 76. South Carolina accepted the Federal Constitution and took her place in the
Union. She was thus assigned a position speedily to realize the
prediction of her distinguished and devoted son, John Rutledge,
who had declared in reply to the doubts and fears of his opponents,
that " so far from thinking that the sun of this country was obscured
by the new Constitution, he did not doubt but that whenever it was
adopted, the sun of this State, united with twelve other suns, would
exhibit a meridian radiance astonishing to the world."t
On the organization of the Federal Government, Chancellor Rutledge was handsomely complimented by his native State, in receiving
its electoral vote for the office of Vice-President of the United States
-the vote of the State being cast unanimously for Gen. Washington
for President. This circumstance, of itself, is sufficient to show the
high place occupied by Rutledge in the estimation of his fellow-citizens,
and that he was regarded then, as he had been for years previous,
and as he continued to be for years subsequent, as among the foremost men in America. A higher compliment, if possible, certainly
one more honorable to his judicial character, was his appointment
by the President, and unanimous confirmation by the Senate, as an
Associate-Justice of the Supreme Court of the United States, imme* ElliottIs Debates, vol. iv. pp. 305 to 317.
t Elliott's Debates, vol. iv. p. 299.




JOHN RUTLEDGE.                     177
diately on its organization, in September, 1789. The name of Rutledge is next in the order of commission to that of the Chief-Justice.*
Indeed, it has been intimated that the President only assigned the
Chief-Justiceship to Mr. Jay, "after some deliberation."t  This, however, I think is incorrect. The " Act to establish the Judicial Courts
of the United States" was approved on the 24th September, 1789,
and the President sent into the Senate, on the very same day, his list
of nominations for Judges of the Court. There is very little doubt
that Jay, above all others, was Washington's first choice for the ChiefJusticeship, and without any " deliberation;" and as little doubt, perhaps, that if Jay had declined, the office would then have been tendered to Rutledge; in which event, it is more than probable that Chan,
cellor Livingston would have been the selection from New York for
a seat upon the bench of the Supreme Court.
Mr. Rutledge was, as we have seen, at the time of his appointment, one of the Chancellors of the State of South Carolina. In
the introduction to Desaussure's Chancery Reports, it is stated that
he continued to hold this office till his appointment in February,
1791, to the Chief-Justiceship of South Carolina. If this be so
he must have held the Chancellorship and his appointment under the
Federal Government concurrently, for it does not appear that he resigned his office as Associate-Justice of the Supreme Court, until after
his appointment to the Chief-Justiceship of South Carolina. Thomas
Johnson of Maryland, who succeeded Judge Rutledge on the bench
of the United States Supreme Court, was appointed and took his seat
at the August term, 1791, so that the latter must have held this place
up to that time. During the short time, however, which elapsed between his appointment and resignation-a period of less than two
years-it is not probable that he performed much active service.
The courts where then in the process of organization, and very little
business could have been transacted at this early period, either at
the Circuits or in the Supreme Court. We have seen that Judge
* By the Judiciary Act, the Judges were to take precedence according to the
dates of their respective commissions. The commission of Judge Rutledge is
dated the 26th of September; that of Judge Cushing the 27th; Judge Harrison the
28th; Judge Wilson the 29th, and Judge Blair the 30th.
t See Preliminary Notes to Wharton's State Trials.
12




178            LIVES OF THE CHIEF-JUSTICES.
Rutledge was not present at the organization of the Supreme Court,
February term, 1790,* nor indeed does it appear that he was present at either of the two following terms. It is not unlikely that,
with the assistance perhaps of Judge Iredell, he held the Circuit
Courts for the southern circuit, comprising the States of South Carolina and Georgia, and North Carolina on the accession of that State
to the confederacy;-but I do not find any thing of special importance relative to this portion of his judicial career. If, as Mr.
Desaussure states, Judge Rutledge continued to hold the office of
Chancellor during this period, he must have held it nominally,
merely, and without rendering any active duties. The last case I
can find, in which he sat on the bench as Chancellor, is at the December term, in the year 1789. Every other reported case down
to the period of his resignation, seems to have been decided in his
absence by his associates, Chancellors Hutson and Mathews.
The politics of Judge Rutledge had been of the Federal stamp;
that is to say, he had been, as we have already seen, ardently and
zealously in favor of the Federal Union, upon the principles embodied in the Constitution;-and he had been also classed with the
leading Federalists of that day, who sustained the administration of
President Washington. He was now to separate from his party upon
a vital and important question. It was in regard to the celebrated
treaty of Mr. Jay, which I have alluded to in the preceding sketch
of that gentleman. The course taken by Rutledge in this matter, is
by no means remarkable. His prompt, fearless, and independent
action in opposing the treaty, was precisely what might have been
expected from a haughty but chivalric temper, and a mind not slow
to forget a wrong or resent an injury. Two opposite sentimentspassions they might be called-had taken deep root in his breast,
and strongly influenced, if they did not absolutely control his political
views and actions; namely, antipathy to England, nourished as it was
by the bitter and undying memory of past wrongs, and love for his own
people and the gallant State of his birth. And surely no man ever
had cause to love England less, or South Carolina more. It is no
wonder, therefore, that Rutledge should have opposed and denounced
with passionate earnestness, this treaty, regarding it as he did both as
* See Life of Jay, ante, page 47.




JOHN RUTLEDGE.                      179
an unworthy concession to the grasping policy of England, and as
an unjust sacrifice of the rights and interests of that portion of the
confederacy to which he belonged. The opposition of such men as
Rutledge and Pinckney struck the friends of the treaty with astonishment and dismay. Nor was it a lukewarm opposition; he entered
into it as he had done into the revolutionary struggle in his native
State, with all the warmth and ardor, all the energy and impetuosity
of his temper. This is manifest from the strong language used by
some of the prominent Federalists of the day, in opposition to his
appointment as Chief-Justice. Oliver Ellsworth remarks in a letter
to Mr. Wolcott: "That E. R. (Edward Rutledge) should not act
at all, is less surprising than that J. R. (John Rutledge) should act
like the devil. I wait for the unravelling, when more is to be
known."
But the composure and firmness of Washington raised him above
all party and personal considerations.*  Sustained by the majestic
strength of his own character, and relying with a just confidence
upon the suggestions of his own judgment and the instincts of his
own noble nature, he stood unmoved amid the war of faction, and
was deaf alike to the dark hints, and the open remonstrances, of
those who desired to defeat the nomination. Without a moment's
hesitation, and with scarcely an intimation of his purpose to his
cabinet, on the resignation of Judge Jay, he tendered to Rutledge
the vacant Chief-Justiceship.  His letter of appointment is both
cordial and respectful; and bears honorable testimony alike to the
greatness of the mind that conceived it, and the character of the man
to whom it was addressed. It bears date at Philadelphia, July 1,
1795, and is as follows:
"DEAR SIR:-Your private letter of the 18th ultimo, and Mr.
Jay's resignation of the office of Chief-Justice of the United States,
both came to my hands yesterday. The former gave me much
pleasure, and without hesitating a moment, after knowing you would
accept the latter, I directed the Secretary of State to make you an
* President Adams very complacently contrasts his own policy in regard to
appointments to office with that of Washington. In a letter to Wolcott he says:
" Washington appointed a multitude of Democrats and Jacobins of the deepest
dye. 1 have been more cautious in this respect," &c.




180             LIVES OF THE CHIEF-JUSTICES.
official offer of this honorable appointment; to express to you my
wish that it may be convenient and agreeable to you to accept it; to
intimate, in that case, my desire, and the advantages that would attend
your being in this city the first Monday in August, at which time
the next session of the Supreme Court will commence; and to inform
you that your commission as Chief-Justice will take date on this
day, July 1st, when Mr. Jay's will cease, but that it would be detained here to be presented to you on your arrival.
"I shall only add that the Secretary will write to you by post
and by a water conveyance also, if there be any vessel in this harbor
which will sail for Charleston in a few days, and that with much
sensibility for your good wishes, and an assurance of the sincerest
esteem and regard, I am, my dear sir," &c.
Rutledge accepted the appointment so handsomely tendered, and
immediately set out for Philadelphia.  He arrived in time to take
his seat as Chief-Justice in the Supreme Court at the commencement
of the August term of the same year.
In the mean time rumors of the appointment had got abroad, and
the leading Federalists who were enlisted in carrying through the
Jay treaty did not scruple to express their dissatisfaction. "To
my astonishment," writes the Secretary of the Treasury, Wolcott,
to Hamilton, July 28, 1795: "To my astonishment I am recently
told that John Rutledge has had the tender of the office of ChiefJustice. By the favor of Heaven the commission is not tendered,
and now I presume it will not be; but how near ruin and disgrace
has the country been!"  A sentiment in which Hamilton very cordially
concurred, as is evident from his reply a few days after: "I find it
is true that John Rutledge has been invited to be Chief-Justice, but
he is not commissioned, and I must presume he will not be after his
late conduct." Indeed to such an extent did party feelings carry
that uncompromising Federalist, Wolcott, that he does not hesitate
in one of his letters to Hamilton to stigmatize Rutledge as "a driveller and a fool," and even to cast obliquely a reflection on the
President himself.* Others of the Federalists, however, were more
* The same gentleman characterizes one of Edward Livingston's finest speeches
in the House of Representatives as " rant." The high terms in which ChiefJustice Marshall speaks of Rutledge's abilities are in strong contrast with the




JOHN RUTLEDGE                       181
moderate in the expression of their opinion. Mr. Ellsworth, who
disapproved the appointment merely, remarks: "With regard to
Mr. Rutledge, it certainly was difficult, after he had come, not to
commission him. If the evil is without remedy, we must, as in other
cases, make the best of it."
A leading Federal member of Congress* about the same time
writes: —" Many of the advocates for the present measures are hurt
by Mr. Rutledge's appointment, and are unable to account for it,
but impute it to want of information of his hostility to the government, or some hidden cause which justifies the measure. We shall
be loth to find that faction is to be courted at so great a sacrifice of
consistency."  Remarks like these, from  comparatively moderate
men, alike unjust to the motives of the President, and to the character of Judge Rutledge, will serve to show the state of party feeling
at the time. It must be added that the appointment had not been
made in consequence of a " want of information."  Rutledge's position in regard to the treaty was well known; indeed it is said that
Washington had from the outset fully weighed the objections that
would be made, had anticipated the opposition of members of his
cabinet, and therefore had given them no intimation of his intentions. He certainly could not have anticipated the extraordinary
course subsequently taken by those claiming to be the peculiar
friends of his administration in the Senate, and who undertook to
correct his error, by refusing to confirm the nomination.
The newspapers of the day in the Federal interest, in like manner,
censured the appointment in the strongest terms. Rutledge's opposition to the Jay treaty was no secret.  It was a public, bold, and
energetic opposition, and from the character and standing of the
man, it attracted the attention of the whole country. About the
time his appointment as Chief-Justice became known, the news
was received at the North of a large and enthusiastic meeting held
at Charleston, July 16, 1795, to denounce the treaty. General
Gadsden, Judge Mathews, and other eminent citizens took the lead
petulant and contemptuous language of Wolcott. He call him " a gentleman
of vigor and talents:" a gentleman of great talents and decision," &c. See
I Marshall's Washington, p. 72-297.
* Chauncey Goodrich.




182              LIVES OF THE CHIEF-JUSTICES.
at this meeting, and among others Rutledge addressed it with more
than his usual animation and vehemence in condemnation of the
treaty.* A pretended report of this speech found its way into the
papers, and some expressions in it were criticised with great severity.
Nor was this all. There were those who did not hesitate, under the
protection of anonymous newspaper publications, to attack not only
the political, but the private character of the Chief-Justice. In the
"Columbian Centinel," a Federal paper published at Boston, an
anonymous letter appeared, August 26, 1195, under the signature
of " A real Republican," addressed to Judge Rutledge, and filled with
the most bitter and violent denunciation. This letter alludes to his
"mounting a hogshead, haranguing a mob assembled purposely to
reprobate the treaty and insult the Executive of the United States."
In regard to his office of Chief-Justice, the writer very considerately
advises him, "if he would save himself from disgrace," to decline
the appointment. After some severe, and even savage, comments
upon his pecuniary situation and financial embarrassments, the author
of this letter, apparently stimulated by his own passions to redoubled
virulence, insinuates, "from common report," charges against Rutledge's morals and habits too gross to be here repeated. An able
and candid vindication by "a South Carolinian," who describes himself as differing from the Chief-Justice in opinion upon the treaty,
appeared, a few days after, in the same paper. If Judge Rutledge
is embarrassed in his affairs, the writer says, it is because his fortune
had been freely sacrificed in the service of his country; but the
Constitution does not demand fortune as a qualification for the ChiefJusticeship. The great legal ability, and the eminent fitness of
Judge Rutledge for the office, are dwelt upon with force and becoming
* It was in reference to this speech, doubtless, that his name is mentioned in
the " elegant lines " (as they are called by a Federal newspaper of the day) which
introduce a summing up, or peroration of " the Echo," published at the time in
the Connecticut " Courant," commencing thus:
" Oh, Washington! how stands thy dauntless breast?
Do scenes like these disturb thy mighty rest?
Though Charleston mob, like lice in Egypt, swarms;
Though RUTLEDGE rages, and though PINCKNEY storms 
Though thieves and LIVINGSTONS with patriot ire
Commit the accursed paper to the fire," &c., &c.




JOHN RUTLEDGE.                       183
dignity. It is but justice also to add that while the writer assumes
that "his private character has nothing to do with his official uprightness," yet he indignantly remarks, "even that defies the tongue
of calumny, although'a Real Republican' would hint at, he says not
what, to excite a suspicion against it."*
These attacks, however, as is usual in such cases, appear to have
produced very little or no impression. Nor did they operate in that
quarter toward which perhaps they were more especially directedthe mind of the President. The confidence of Washington seems to
have continued unabated. During Rutledge's stay in Philadelphia,
at the August session of the Supreme Court, he was invited to dine
with the President; and this circumstance is mentioned even by
the " Centinel" as "evincive of cordiality between these two distinguished characters, notwithstanding any difference of political sentiment between them." But a stronger evidence that the mind of
Washington was not influenced by these combined assaults, and that
his confidence in the fitness and capacity of the Chief-Justice remained unshaken, is found in the fact that notwithstanding this outside pressure, he resolutely adhered to his original purpose, and on
the opening of Congress sent in the name of Judge Rutledge to the
Senate for confirmation in the office of Chief-Justice.
Chief-Justice Rutledge presided in the Supreme Court at the
August term, 1195.   There are only two reported cases at this
term. In the decision of both of them the Chief-Justice took part,
but in neither of them does he assign the reasons upon which his
judgment is based. Each of these cases involved a question of jurisdiction. The first t was a motion for a prohibition to the District
Court of Pennsylvania, restraining that Court from assuming jurisdiction in the case of a libel filed for damages against the Cassius, an
armed vessel belonging to the French republic, which had captured
an American vessel on the high seas. The vessel which had been
captured by the Cassius had not been brought within the jurisdic~ The reply to this vindication in the " Centinel " of Sept. 5, 1795, seems to
disclose the real motive of this personal attack on Rutledge. It evidently came
from a warm and indiscreet friend of Jay, of whom Rutledge was said to have
spoken very harshly in his Charleston speech.
t United States vs. Peters, District Judge, 3 Dallas, 120.




184              LIVES OF THE CHIEF-JUSTICES.
tion of the United States; but had been sent to St. Domingo and
condemned there as a prize. The question, argued by Mr. Dallas in
support of the motion, was whether under such circumstances the
District Court had cognizance of the matter. In granting the motion
the Chief-Justice delivers his opinion in his usual terse and laconic
style, stating simply the conclusion arrived at without assigning any
reason for the decision.  "We have consulted together on this motion, and though a difference of sentiment exists, a majority of the
Court are clearly of the opinion that the motion ought to be granted.
Therefore let a prohibition issue."*
A more important question was brought before the Court in the
case of Talbot vs. Jansent which was argued    at the same term.
A  brief statement of the facts will be necessary to show   the
points at issue in this interesting controversy. Ballard, an American citizen, was in command of a vessel called L' Ami de la
Liberte, pretending to be a French cruiser, but which had been
illegally fitted out in the United States.  Talbot, also an American
citizen, but who produced French naturalization papers, was in command of another armed vessel called L'Ami de la point a Petre,
sailing under a French commission.  Ballard captured a Dutch vessel, and being soon after joined by Talbot, the latter took possession
of the prize, and in company with Ballard, both having put prize
masters on board, brought the captured vessel into the port of
Charleston.  The Dutch captain claimed restitution, which the District Court of Charleston decreed, and the Circuit Court of Charleston confirmed the decree.  From   this decision Talbot, the captain
of the French vessel, appealed.  The argument turned mainly upon
the questions whether the capture under such circumstances was il
* The case of " The Cassius " has been, subsequently, approved in the Supreme
Court by the decision in the case of " The Invincible," 1 Wheaton, 238; and also
in the opinion pronounced by Justice Story in the case of " The Santissima Trinidad," 7 Wheaton, 288. The seizure of " The Cassius " was made$ an accusation
against the American government by Talleyrand, in his correspondence with
the American envoys, Messrs. Marshall, Pinckney, and Gerry. In his reply to
Talleyrand, General Marshall very clearly states the case on the other side; and
refers to the decision of the Supreme Court, refusing to take jurisdiction, as a
complete vindication of the United States. See American State Papers.
t 3 Dallas' Reports, 133.




JOHN RUTLEDGE.                      185
violation of the treaty with Holland; and if so whether the United
States courts could take jurisdiction of the case consistently with
the treaty between America and France. But another question of
the gravest character and highest importance was also raised and
discussed for the first time in the Federal courts-a question upon
which the judicial mind remained unsettled for years subsequently,
and which in some respects may still be considered a qestio vexata
-namely, whether the common law doctrine as to allegiance and
expatriation was to be regarded in America as a rule of municipal law. It had been made a point in the argument against the
legality of the capture, that Talbot's French naturalization was unavailing, and that' he remained still a citizen of the United States.
This, of course, opened the way for a full discussion of the doctrine of
perpetual allegiance, but no decision was pronounced upon it, the
case being finally disposed of upon other principles. The question,
however, was considered by Judges Paterson and Iredell in their
carefully written opinions, the latter of whom  seemed inclined to
hold the doctrine subsequently laid down by Judge Ellsworth, and
applied with such strictness in the trial of Williams,* that a citizen
does not possess the right of voluntary expatriation without the permission of his own government. Judge Rutledge carefully avoided
expressing an opinion on the subject. " The doctrine of expatriation is certainly of great magnitude," he remarks, " but it is not
necessary to give an opinion upon it in the present cause, there being
no proof that Captain Talbot's admission as a citizen of the French
republic, was with a view to relinquish his native country; and a
man may at the same time enjoy the rights of citizenship under two
governments."  Upon the merits of the case the Chief-Justice concurred entirely with his associates in sustaining the decree of the
District Court, which awarded the Dutch vessel to its rightful owners.
In pronouncing the judgment of the court, which he does with more
than his usual economy of language, he disposes of the pretensions
of Capt. Talbot in the following decisive and summary manner:
" The capture was a violation of the law of nations, and of the treaty
with Holland.  The Court has a clear jurisdiction of the cause.
* See remarks on the trial of Williams in subsequent sketch of Judge Ellsworth.




186            LIVES OF THE CHIEF-JUSTICES.
Every motive of good faith and justice must induce us to concur
with the Circuit Court in awarding restitution."
The dignified bearing of Chief-Justice Rutledge on the bench has
been spoken of, on the authority of traditionary accounts, in the
highest terms of praise. It was graceful and courtly, though tinged,
it is said, with that haughtiness which in later years had marked
him. In these closing scenes of his judicial career, and of his public
life, it was remarked that his natural impetuosity had been subdued
by the approach of age, the weight of long public service, and the
anxiety of a position, the intrigues of which, he soon became conscious, admonished him was but too insecure.*
The appointment of Rutledge had been made during the recess of
Congress. He was yet to pass the ordeal of the Senate. The Jay
treaty had been approved by the President, and there seemed now no
controlling reason for opposing his confirmation, unless, perhaps, on
account of the affirmative action still required of Congress to carry
out some of the provisions of the treaty. Nevertheless so great was
the chagrin of the dominant party in the Senate, that notwithstanding their avowed respect for the President, they determined to carry
out the extraordinary measure of opposing him in this nomination.
The subject was entertained among prominent men some time before
it was acted upon by the Senate, as is evident from a letter of the
elder Wolcott, dated Nov. 23, 1795. "I hope we may rely upon
the firmness of the Senate," he says. "The virtuous motives which
have induced the treating with regard men who avow and act upon
principles inconsistent with the preservation of order, to influence
them to a more just conduct, have been and will be ineffectual. I
hope, therefore, however disagreeable it may be to imply an error of
judgment in the President in appointing Mr. Rutledge, that he will
not be confirmed in his office."
The hope thus expressed was destined to no disappointment. On
the 15th December, 1195, the Senate, by a small majority, refused to
confirm the nomination, and thus the "error in judgment" of the
President was corrected by his own professed personal and political
friends. It was well understood that the vote of the Senate was
* Notes to Wharton's State Trials.




JOHN RUTLEDGE.                       187
governed mainly by political considerations.* This is very clearly
evident from an expression in a letter from Jefferson to Madison
written at the time. "The rejection of Rutledge by the Senate,"
he says, " is a bold thing, because they cannot pretend any objection
to him but his disapprobation of the treaty."
But, whatever may have been the reasons and motives which influenced the action of the Senate, the rejection of Rutledge was in
many respects fortunate both for himself and his friends. Even if
he had been confirmed, he would probably never again have taken
his seat on the bench. For, while his nomination was yet pending
in the Senate, that strong and vigorous mind was becoming unsettled,
and the light of that brilliant intellect was fading into darkness and
night. The Senate had scarcely set its seal of disapprobation upon
the nomination of Rutledge when rumors reached Philadelphia that
he was becoming insane.    "The fact," says a correspondent from
that city, " is daily corroborated. I have it from authority which
mingles the tears of pity and commiseration."
The malady which prostrated Rutledge and overclouded the latter
years of his life was in a measure the result of diseases brought upon
him many years before by sufferings and exposure in the service of
his country. I am assured by a connection of the family that the
mother and wife of Rutledge were frequently heard to say that a
fever taken at an unhealthy season of the year, in a swampy district
of country, at the time the British troops were overrunning the
colony, had laid the seeds of that disorder which broke down his
constitution while he was yet in the prime of life, and from which he
never recovered.
Just before his rejection by the Senate-though that body does
not seem to have had at the time of the vote any definite knowledge
of the true state of the case-he experienced a renewed and violent
attack of sickness which it appears ended in insanity. A letter from
Charleston,'under date of December 1st, 1795, conveys the first inti* Hamilton hints at other reasons, in a letter to Rufus King, so late as December 14th, and speaks of the reports which had been circulated to Mr. Rutledge's
discredit. " If there were nothing in the case," he remarks,' but his imprudent
sally upon a certain occasion, I should think the reasons for letting him pass would
outweigh those for opposing his passage."-Hamilton's Works, vol. VI. p. 76.




188             LIVES OF THE CHIEF-JUSTICES.
mation of his illness: "By a gentleman who left Camden on Wednesday last, we are informed that the Chief-Justice of the United
States left that place on the Saturday preceding on his way to hold
the Circuit Court in North Carolina; that on the evening of that
day he reached Evans's tavern on Lynch Creek, which he left the next
morning. A few hours after he was taken so unwell that he was
obliged to return to Mr. Evans'. When the account came away he
was so much indisposed as to make it doubtful whether he would be
able to proceed in time to hold the court in North Carolina."*
Three days afterwards, a paragraph in the same paper announces:
"By a southern paper we learn that Judge Rutledge is so disordered
in his intellect, as to render it necessary to have him constantly
guarded, he having threatened and even attempted his own destruction."t
And here the scene closes upon the life of Rutledge. Nothing
remains to be added. The remnant of his life is a blank and a void.
It was passed in the fluctuations of a disease which prostrated alike
body and mind. The strong man had fallen, and the light of a great
intellect had become dimmed. To borrow the striking imagery of
oriental imagination, the silver cord was loosened, the pitcher broken
at the fountain, and the wheel broken at the cistern. He died in the
summer of 1800, about six months after the decease of his brother,
Gov. Edward Rutledge, and was interred in St. Michael's churchyard, in his native city of Charleston.
Mr. Rutledge was married in the year 1763, to Miss Elizabeth
Grimkd. He left a family of five sons and two daughters, all of
whom are now dead. His descendants, however, are numerous, many
of them residing in the city of Charleston. His eldest son, John
Rutledge, jun., a gentleman of fine talents and effective eloquence, was
a leading member of Congress, during a part of the administrations of
Adams and Jefferson; retaining his place in that body as long as the
Federal party was in the ascendancy in South Carolina.t
* Boston " Centinel," January 2, 1796.
t The "Aurora" announces on the authority of a letter from a gentleman of
Charleston, of Dec. 31, 1795, that " Chief-Justice Rutledge, on Saturday last, attempted to drown himself, but was taken out of the water by some negroes. It
is said he has discovered symptoms of derangement for same weeks past."
t He took a prominent part in the discussions of that body, and particularly




JOHN   RUTLEDGE.                     189
There were many traits in the character of Judge Rutledge calculated to attract the popular admiration. Hte was bold, open, frank
and ardent in temper and disposition, and was gifted with those captivating conversational powers which rarely fail to find their
way to the sympathies and hearts of his fellows. But independent
of this he possessed many of those higher and more sterling qualities which stamp the man of real superiority of mind.     I am
doing no injustice to others in claiming for Rutledge a place among
the very ablest and greatest of the revolutionary leaders.* He exhibited abilities of the most striking character in every position in
which he was placed. He was eminent, not merely as an oratorin the eloquence of language and of action-but as a statesman, a
legislator, a jurist.  His administrative talents were of the first
order. He was a man of action, of energy, of resources-a man of
a powerful grasp of intellect, of liberal views, and of original impressions. He possessed the qualities of decision and firmness in a remarkable degree and in their best sense, and he was endowed with an
indomitable will which adversity could not shake, nor misfortune
crush. The courage of Rutledge was of the highest character; he
exhibited every degree of it-from the courage of the grenadier to
that of the statesman —from mere physical composure and intrepidity
in the midst of danger, to that more exalted species of courage
which shrinks not to incur a responsibility, or boldly avow an unpopular principle in the face of the world. His public career is full
of instances of courageous action and fearless independence. No
public man of the times acted under less restraint from the shackles
of party. His independence was not a mere semblance, but a reality
-a full, genuine, unfettered independence of thought, word, and
action. He scorned alike to conceal an opinion, and to abandon a
principle, no matter at what cost to himself, or what personal sacrifice.
If to these superior qualities were added some which may be supdistinguished himself in the celebrated debates on the change of the judiciary system in January, 1802. He also participated effectively in the animated discussions on the extradition of Nash, in the year 1800.
* " He was the soul of every council and enterprise." says an intelligent gentleman of his native State in a letter now before me, "' and his energy and genius
went far in the conduct of the war in this section of the country."




190             LIVES OF THE CHIEF-JUSTICES.
posed to detract in a measure from his greatness, it merely proves
the general imperfection of all human excellence. If it be true that
he was proud and haughty, imperious in manner, and hasty and
obstinate in temper-if it be true even, as his enemies insinuated,
that he was not entirely exempt from those frailties which social
custom in his day tolerated, if it did not encourage,-it affords but
another evidence of the fact which all history demonstrates and experience confirms, that mankind furnish few, if any, examples of
perfect character. But there was in Rutledge so much of real superiority and genuine greatness, that these imperfections, though
perhaps they ought not to be entirely overlooked, may be passed by in
silence. To the American people, and especially the people of his own
State, he must always appear, as he appeared to General Greene,
"one of the first characters" in our annals. Such a distinction he
honorably and nobly won, and surely no one better deserves to wear
it than he.
In the hall of the Supreme Court at the Capitol in Washington
may be seen, upon their marble pedestals, the busts of Jay, of Ellsworth, and of Marshall. The eye of the stranger naturally seeks the
bust of the distinguished Carolinian also, in that august tribunal over
which he too, though for a brief period, presided;-but it seeks
it in vain. No product of the sculptor's chisel, amid that silent but
impressive marble group, recalls the memory of John Rutledge. And
the thought naturally arises in the mind, why is it that his place is
vacant? Surely there might be found at least some niche in the judicial temple by the side of his predecessor, and his successors, on
the bench, for the second Chief-Justice of the United States.




OLIVER ELLSWORTH.








OLIVER ELLSWORTH.
OLIVER ELLSWORTH was a Senator in Congress from the State of
Connecticut at the time the Senate refused to confirm Mr. Rutledge
in the office of Chief-Justice. As a member of the Federal party he
of course contributed to defeat the nomination of his predecessor; but
no one has ventured to question the purity of motive which prompted
his action on that occasion. From his known reluctance to accept
the vacant place, it is probable that he himself was the last member
of the Senate who could have anticipated that the judicial robe was
about to fall from Judge Rutledge's shoulders on his own.
Chief-Justice Ellsworth brought to that high tribunal, over which,
for a brief period, he presided, a valuable experience both as a lawyer
and a judge. Called to the bar a few years previous to the revolution,
he had attained a respectable professional position before his business
was interrupted by those great political events which summoned him
into the public service; and when, at the close of the revolution, he
returned to his native State, it was to take his seat upon the bench
of the Connecticut Superior Courts, in which station he continued until the Federal Convention, and the organization of the new government opened to him a wider and more extended field of usefulness.
He came to the bench of the Federal Courts, therefore, under the
most favorable auspices; for he added the experience of the statesman to that of the advocate and the jurist. He possessed, in a felicitous combination, remarks a very judicious writer, "those qualities which
make up a great judge, and which afterwards, through a much longer
career, were displayed by his eminent successor. His mind, naturally
13




194              LIVES OF THE CHIEF-JUSTICES.
exact and comprehensive, had been disciplined by severe study and by
the exercises of an extended practice. He went into public life just
at that period, when the intellect, not yet so settled in the professional
mold as to lose its natural malleability, is able to adapt itself to its
new and more liberal pursuits with tenacity and precision, but without
the stiffness attendant on long service at the bar." *  He remained, it
is true, but a few years on the bench of the Supreme Court; but, like
his predecessor, Jay, he retired with honor, and left the impress of
his mind upon the early history of the federal judiciary.
I have not been able to collect materials for any very detailed
account of the early years of Mr. Ellsworth's life.  In this respect, indeed, he has but little the advantage of the great majority of
his brethren of the old Supreme Court, of whom scarcely a notice remains. Nor, perhaps, could this be expected. The life of a plain
New England lawyer must have glided on smoothly and quietly
enough until broken in upon by the stormy scenes of the revolution:
and whatever of local interest may have attached to it, we could
scarcely hope, even were it possible to retrace the record, to meet
with many of those personal recollections which serve at once to illustrate the character, and to indicate the temper and talents of the
future judge. Nor should we expect to find in these earlier years of
his life a narrative replete with those striking incidents or great enterprises, which sometimes sparkle on the page of biography, and never
fail to attract the public gaze. There is nothing of this in the early
history of Oliver Ellsworth. Indeed, that history may be said to
commence with his appointment to the Continental Congress in 177.
With little to interest, and nothing to excite previous to this period, we
shall, thenceforth, on every hand, encounter interesting traces of the
labors and services of the pains-taking and judicious statesman, and
the discreet and careful judge, in the various departments of civil life
which he filled, legislative, diplomatic, and judicial. From this point
then I shall take up the narrative; first, however, presenting the
reader with a summary of the earlier years of his life, as it is sketched
by the graceful pen of one who seems to have thoroughly understood
and appreciated the character of his subject.t
* Notes to Wharton's Am. State Trials, p. 37.
t From an original memoir of Chief-Justice Ellsworth, published in the Ana



OLIVER ELLSWORTH.                      195
"Oliver Ellsworth was born at Windsor, a village in the interior of
Connecticut, April 29th, 1745, of respectable, but not very wealthy
parents. He was brought up in the simple, regular, and frugal mode
of life which at that time universally prevailed throughout the province, and which is still, although in a less degree, a striking characteristic of the domestic manners of Connecticut.
"The state of manners and of education in New England about this
period, was, perhaps, of all others, the best calculated to rear up men
fitted to struggle through the toils, the difficulties, and the dangers of
a great revolution, without endangering the safety of those republican
institutions for which they contended, either by turbulent violence, or
unprincipled ambition. A greater proportion of the whole population
of the country had received a liberal education, than was probably the
case in any other part of the civilized world. Thus, in addition to the
number of men, not, indeed, profoundly learned, but competently instructed for any ordinary purpose of active life, a great mass of general information was diffused, and a universal activity of mind excited
throughout the whole community. The bigotry and fanaticism which
occasionally disgraced the elder puritan settlers had died away; much,
too, of their rigid virtue and high-toned principle had gradually decayed with them; but enough was left to keep up a very general regard
to moral and religious character, and an habitual reference to principle, in the conduct and opinions of the great body of the people.
Above all, the peculiar state of the country, which had just emerged
from the hardships of a new and half-peopled colony, while it excluded
most of the luxuries and many of the refinements of civilized life, had
a strong tendency to train up the youth in those habits of simplicity
and privation, of personal independence, and of constant activity of
mind and body, which, however ill the parallel may accord with the
magnificent illusions of classical prejudice-in fact constituted the
most essential part of that education which formed the heroes and
patriots of republican antiquity.  Sanctos illis, horrida, mores-tradidit domus, ac veteres imitata Sabinas.
" In this state of society was Mr. Ellsworth's character formed, and
the early impressions of his youth may be traced through the whole
lectic Magazine for 1814, Vol. III. page 382, and republished a few years since in
Vol. III. American Law Journal.




196              LIVES OF THE CHIEF-JUSTICES.
uniform tenor of his public and private life. His youth was passed
alternately in agricultural labors, and in the elementary studies of a
liberal education. At the age of seventeen he entered Yale College;
but after some residence there, in consequence of a boyish disgust
or irregularity, he removed to Princeton, where he completed his
academic course, and received the degree of A.B. in 1766.
"His standing as a student was sufficiently respectable; but he is
said to have been much more remarkable for his shrewdness and adroit
management in all the little politics of the College, than for any uncommon proficiency in science or literature.   Within two or three
years after his leaving college, he was admitted to the bar in Connecticut, and commenced the practice of his profession in the county of
Hartford.*   The jurisprudence of Connecticut, after a long period of
darkness and uncertainty, had, a very short time before Mr. Ellsworth's
entrance upon professional life, assumed a regular form.
" The common law, after overcoming many doubts, and some strenuous opposition, was fully received; a regular mode of practice, not very
formal, but sufficiently accurate for every ordinary purpose, was now
settled; and the decisions of Lord Mansfield and the other great
English Judges, who had introduced light and order into the scholastic
refinements and nice technical distinctions of the ancient law, and gradually adapted it to the necessities of an enlightened age, and a commercial people, were at length familiarly cited at the Connecticut bar.
This amelioration of the legal system was accompanied or preceded by
a corresponding improvement in literature and taste, and public speakers
* I find the following anecdote related of his early practice at the bar. " His
father presented him with a small farm, situated in the south-western corner of
Windsor, and in the management of this and the few suits with which his acquaintances and friends entrusted him, his ardent and active mind was forced for a time
to content itself. As often as the session of the Court occurred at Hartford,
leaving his farm and revolving his cases in his mind, he travelled thither on foot,
and back again in the same manner, when the season was over. Soon, however,
a suit was committed to his management, of trivial importance, indeed, so far as
concerned the pecuniary interest at stake, but at the same time involving the decision of a legal principle of the deepest moment. Young Oliver proved himself
equal to the emergency; and by the ability and skill he exhibited in the conduct
of the suit, at once established his reputation on a permanent basis, and he took
his stand among the most promising and talented of the younger members of his
profession at the Hartford bar.




OLIVER ELLSWORTH.                    197
and advocates found themselves compelled to pay a much greater attention to correctness, and even elegance, of language, than the public taste
had ever before required. With this era of legal and intellectual
light Mr. Ellsworth commenced his professional career. He had not
laid a very deep foundation either of general or professional learning; but the native vigor of his mind supplied every deficiency; the
rapidity of his conceptions made up for the want of previous knowledge; the diligent study of the cases which arose in actual business,
stored his mind with principles: whatever was thus acquired was
firmly rooted in his memory; and thus, as he became eminent, he
grew learned.
"The whole powers of his mind were applied with unremitted
attention to the business of his profession, and those public duties in
which he was occasionally engaged. Capable of great application,
and constitutionally full of ardor, he pursued every object to which he
applied himself with a strong and constant interest which never suffered his mind to flag or grow torpid with listless indolence. But his ardor
was always under the guidance of sober reason. His cold and colorless imagination never led him astray from the realities of life to wanton
in the gay visions of fancy; and his attention was seldom attracted by
that general literary curiosity which so often beguiles the man of
genius away from his destined pursuit, to waste his powers in studies
of no immediate personal utility. At the same time his unblemished
character, his uniform prudence and regularity of conduct acquired
him the general confidence and respect of his fellow-citizens-a people
in a remarkable degree attentive to all the decorum and decencies of
civilized life. \ He very soon rose into high reputation and lucrative
practice; and before he had been long at the bar received the appointment of State's Attorney for the district of Hartford, an office at that
time of very considerable emolument. This he continued to hold during the greater part of the revolutionary war. From the very commencement of that contest he declared himself resolutely on the side
of his country; and on two or three occasions, when Connecticut was
harrassed by the incursions of the enemy, went out with the militia of
his country into actual servive, more, however, for the sake of example, than from any particular inclination to military life. For several
sessions in the years immediately preceding the declaration of inde



198            LIVES OF THE CHIEF-JUSTICES.
pendence, he represented the town in which he resided in the general
Assembly of the State, with great reputation, and took a large share,
not only in the ordinary business of the House, but also in all those
public acts and declarations which were called forth by the peculiar
circumstances of the times. About the commencement of the war he
presided for a short time at the pay-table, as it was called, or office of
public accounts of the State of Connecticut.
*       *       *       *       *      *       *
" Mr. Ellsworth was now fairly entered upon his career, and with a
character and talents so admirably adapted to the state of society
around him, he was enabled, without trick or artifice, or the sacrifice
of principle, to take at the flood that tide which leads to fortune."
Such is the modest and unpretending history of Mr. Ellsworth's life
up to the period of his entry upon that broader theatre of action
which the revolution laid open before him.  By the force of his
talents and industry he had risen to an honorable position at the bar
of his native province-a bar which could boast the names of such
men as Johnson, Hosmer, Law, and Huntingdon, to stand side by side
with whom might surely be an object worthy the ambition of the young
aspirant after professional fame. This Ellsworth speedily accomplished, and if he did not outstrip, he at least soon equalled his older
competitors. His talents as an advocate are said to have been unrivalled. He excelled especially as a nisi prius lawyer, in the conduct and management of causes, at the trial table;-cool, adroit,
cautious, and endowed with an admirable self-possession, and felicity
of temper, he came to the trial of his cases, not only with perfect selfreliance on his own talents, but with that confidence which a thorough
knowledge of the facts, as well as the law, and a careful and laborious
preparation, never fail to inspire.
It is stated that when he took his seat in Congress in 1778, he
abandoned a practice the most lucrative in Connecticut. The expression, I apprehend, is not strictly correct, as it does not appear that he
actually abandoned his professional avocations during the war, although undoubtedly the business of the courts in that State, as well
as in others, was much impeded at this period.* Ellsworth, like the
* That Ellsworth continued in the active practice of his profession up to the




OLIVER ELLSWORTH.                     199
rest of the Connecticut delegates, was not constant in his attendance
upon the deliberations of Congress. That State usually commissioned
seven delegates annually, not less than tvvo nor more than four of
whom were to attend at any one time at the charge of the State.
The consequence of this arrangement was, that the delegates were
alternately relieved by their colleagues, and thus were enabled to return home at intervals to attend to their private affairs and business
avocations. Though Mr. Ellsworth was commissioned in the autumn
of 1777, yet he did not actually take his seat until the 8th of October
of the following year, Connecticut having been meanwhile represented
alternately by his colleagues, Roger Sherman, Hosmer, A. Adams,
and others.
In the mean time he had been assigned to the discharge of a difficult as well as delicate duty. On the very day when his name was
placed on the commission as a deputy from the State of Connecticut
to Congress, that body had named him as one of a committee of five to
examine into, and report, the causes of the late failure of the expedition
against Rhode Island.  Ellsworth, with two of his associates, entered
upon the discharge of this duty during the latter part of the next winter and spring, and, having taken a mass of testimony, reported the
same to Congress. Nothing, however, seems to have been done beyond a mere entry of the fact upon the journal; perhaps Congress
deemed it a matter of more consequence to make provision for the
success of new expeditions, than to waste its time in investigating the
causes of the failure of old ones.
When Ellsworth took his seat in Congress, in October, 1778, that
body consisted of about thirty members. It numbered some of the
best, and ablest, and wisest men whom the revolution produced. Besides Ellsworth's colleague, Roger Sherman, the roll of its members
contained the names of Samuel Adams, and Elbridge Gerry, of Massachusetts; the two Morrises, Robert and Gouverneur; Dr. Witherspoon,
of New Jersey; Richard Henry Lee, of Virginia; Laurens, Drayton,
and Mathews, of South Carolina; and, soon after, John Jay, of New
period of his appointment as Judge of the Connecticut Superior Court, is evident
from the fact which appears by the reports, that several important cases, in which
he had been engaged as counsel, came before the Court for review, Judge Ellsworth, of course, taking no part in the decision.




200              LIVES OF THE CHIEF-JUSTICES.
York. It was a grave, discreet, dignified body of men, and its deliberations in the main were all characterized by order, moderation,
firmness, and wisdom. The serious character of some of these deliberations would no doubt provoke idle criticism, if not ridicule, in our
day. Only two or three days had elapsed after Ellsworth took his
seat, when he was called upon to vote (and it is unnecessary to say
that his vote was in the affirmative) upon the following resolutions,
whose stern and rigid morality attest their genuine New England
origin.
" Whereas, true religion and good morals are the only solid foundations of public liberty and happiness:
" Resolved-That it be, and it hereby is, earnestly recommended to
the several States, to take the most effectual measures for the encouragement thereof; and for the suppressing theatrical entertainments,
horse-racing, gaming, and such other diversions as are productive of
idleness, dissipation, and a general depravity of principles and manners.
" Resolved-That all officers in the army of the United States be,
and hereby are, strictly enjoined to see that the good and wholesome
rules provided for the discountenancing of profaneness and vice, and
the preservation of morals among the soldiers, are duly and punctually
observed."
It may be added, that every New England vote is found recorded
in the affirmative; and that the resolutions passed almost unanimously,
one or two of the Southern States only dissenting.*
The deliberations of the Congress, it is well known, were secret,
and we cannot, therefore, at this period of time, determine what
may have been Ellsworth's precise share in the discussions of that
body. Enough appears, however, from the Journal, to show that he
was a prominent and active, as well as an efficient member, and that
* Journal of Congress, October 12th, 1778. Only a few days after, the following still more stringent resolutions were passed:
"WHEREAS, frequenting play-houses and theatrical, entertainments has a fatal
tendency to divert the minds of the people from a due attention to the means
necessary for the defence of their country, and the preservation of their liberties:
" Resolved-That any person holding an office under the United States who
shall act, promote, encourage, or attend such plays, shall be deemed unworthy to
hold such office, and shall be accordingly dismissed."-Journal of Congress, Oct.
16th, 1778.




OLIVER ELLSWORTH.                     201
his services were peculiarly valuable upon the various important committees on which he was placed. Sitting, as it did, with closed doors,
Congress exercised the double functions of a secret executive council,
and of a supreme legislative body, and even added to these, at times,
functions of a judicial character. It wielded the entire sovereignty of
the confederacy-the powers of war and peace-and gave directions,
through its committees and otherwise, to the finances, to foreign intercourse, and all naval and military operations. It may readily be
supposed that the talents of Mr. Ellsworth were admirably adapted to
this sphere of action. Indeed, his great administrative capacity was
known and appreciated from the moment he entered the halls of Congress. The day after he took his seat, it appears, from the Journal,
that he was appointed a member of one of the most important committees in the House-that on marine affairs*-a committee which
acted as a Board of Admiralty, and had the general superintendence
and control of naval affairs. This committee continued with extensive
powers until toward the close of the next year, when it was superseded
by the establishment of a Board of Admiralty.
Ellsworth was also appointed a member of the committee of appeals
soon after taking his seat in Congress.t  The functions of this committee were entirely judicial. It was vested with power by Congress
to hear and determine appeals brought from the Admiralty Courts
of the respective States, in cases of prize and captures on the seas.
The history of this committee is one of the most curious parts of
the history of the old Congress. We may trace in it distinctly the
very earliest idea of a federal judiciary, clothed with appellate powers;
and, were I writing the history of the Supreme Court of the United
States, I should begin at the period of the establishment by the old
Congress of this committee of appeals in Admiralty cases. It is worthy of remark that the necessity of an appellate judicial tribunal was
felt from the very first hour of the confederacy, and even before the
Declaration of Independence. So early as November 25th, 1775,
Congress, by resolution, recommended to the several legislatures to
erect Courts for the purpose of determining concerning captures, and
providing that an appeal should be allowed to Congress from such decisions.  Originally each appeal was referred to a separate committee;
* Jour. of Congress, Oct. 9th, 1778.  t Jour. of Congress, Oct. 26th, 1778.




202             LIVES OF THE CHIEF-JUSTICES.
but these becoming more frequent, a permanent COMMITTEE of APPEALS
-that is to say, a judicial tribunal-was appointed on the 30th
January, 17f7, to hear and determine cases of appeal from sentences
of the respective State Courts in Admiralty. The committee was always composed of the ablest lawyers in the House; and its decisions
in several of the earlier cases were received with respect, and acquiesced in by the State Courts. A question, however, soon arose which
brought with it a conflict of jurisdiction.
In the Journal of Congress of November 28th, 1778, the entry appears, " An appeal from the judgment of a Court of Admiralty for the
State of Pennsylvania, on a libel,'Thomas Houston versus Sloop
Active,' was lodged with the secretary, and referred to the committee
on appeals."
Mr. Ellsworth and his then associates in the committee sat upon
the hearing of this appeal.
The facts the case were these:-Gideon Olmstead and others, citizens of Connecticut, had been captured by the British and carried to
Jamaica, where they were put on board an enemy's vessel, the sloop
Active, (bound for New York with supplies for the British,) as navigators to assist in the management of the vessel. During the voyage
they rose upon the master and crew of the sloop, confined them to the
cabin, took command of the vessel, and steered for Egg Harbor, in
the State of New Jersey. When in sight of that harbor the American
brig Convention, belonging to the State of Pennsylvania, Captain
Houston commander, took possession of the Active, and brought her
to the port of Philadelphia. Captain Houston libelled the vessel as
lawful prize of the Convention, and Olmstead for himself and others,
interposed a claim to the cargo and vessel, as their exclusive prize.
The State Court of Admiralty, the cause having been tried before a
jury, adjudged Olmstead and his companions entitled to only onefourth part, and decreed the residue to the other claimants. From
this decree Olmstead for himself and others appealed.
This appeal was heard by the Committee of Appeals, of which Ellsworth was at that time a member, on the 15th December, 1778.
After full argument of the case, which, as will be seen at a glance,
was really one of no small importance, involving some novel and interesting questions of public and prize law, the committee reversed the




OLIVER ELLSWORTH.                      203
judgment of the State Court, and adjudged that the Active should be
condemned as lawful prize for the use of the appellants Olmstead and
his companions, and remanded the cause to the State Court, with
directions to carry the decree into execution.
The Pennsylvania Judge refused to obey, and a conflict of jurisdiction of course ensued. I believe it is the earliest case on record of a
collision between the judicial authorities of the confederation and of
a State. The result was, that Congress found itself without an adequate remedy, and powerless. The Committee of Appeals, on the
motion of Olmstead's counsel, issued an injunction to the Marshal to
restrain him from paying into Court the money arising from the sale
of the vessel. The Marshal disregarded the injunction, and paid
the money to the Judge, who gave a receipt for it. Whereupon the
committee, pursuing the course dictated by discretion, and perhaps by
necessity, declined to take any proceedings for contempt, lest consequences might ensue, as they declare, " dangerous to the public peace
of the United States;" and caused an entry to be made on their
minutes that they would proceed no further in the matter, nor hear
any appeal, " until the authority of the Court be so settled as to give
full efficacy to their decrees and process."
The matter was subsequently brought before Congress, who unanimously-with the exception of the State of Pennsylvania, and one vote
from New Jersey-passed a series of resolutions vindicating their right
to the exercise of this appellate power over the State Admiralty
Courts.*
* Journal of Congress, March 6th, 1779. The extent of the power claimed by
Congress will be seen by the following extract from these resolutions:
" That no Act of any one State can or ought to destroy the right of appeal to
Congress in the sense above declared:
" That Congress is by these United States invested with the supreme sovereign
power of war and peace:
"That the power of executing the law of nations is essential to the sovereign
supreme power of war and peace:
" That the legality of all captures on the high seas must be determined by the
laws of nations.
" That the authority ultimately and finally to decide on all matters and questions touching the law of nations, does reside and is vested in the sovereign supreme power of war and peace:
" That a control by appeal is necessary, in order to complete a just and uniform
execution of the law of nations."




204               LIVES OF THE CHIEF-JUSTICES.
It may be added, that the jurisdiction claimed to be exercised by
Congress in these cases was subsequently fully recognized by the
Supreme Court of the United States.       Nearly thirty years afterwards, in Chief-Justice Marshall's time, the decision of the Committee
of Appeals in this very case was confirmed, and under it the right of
the original captors, Olmstead and others, to the proceeds of the sale
of the Active fully established.*
I do not find that Ellsworth took part in any further proceedings
before the Committee of Appeals after the case of the "Active."
Before the passage of the resolutions referred to, March 6th, 1179,
vindicating the authority and jurisdiction of Congress over the subject,
he had leave of absence and returned home. He was appointed, as
usual, among the delegates to Congress from Connecticut for the ensuing year, but did not take his seat until the middle of December.
Soon after, he was chosen to his old position upon the Committee of
Appeals, in place of Mr. Paca, of Maryland, who at that time was
absent.t   The functions of this committee, however, were about drawing to a close. The case of the "Active" had demonstrated the
necessity of a more thoroughly organized and vigorous tribunal.     In
January, 1V80, Congress passed resolutions for the establishment of a
Court of Appeals in cases of capture, consisting of three judges, appointed and commissioned by Congress; and in May following, the
Court being then fully organized, by a resolution of Congress all mat* United States vs. Judge Peters, 5 Cranch Reports, 115.  The validity of
the powers exercised by the Court of Appeals, under the articles of Confederation,
and by the Committee of Appeals under the old Continental Congress, had been
established by a former decision of the Court, made just before Ellsworth came to
the bench. In the case of Penhallow, et. al. vs. Doane's administrators, Feb.
Term, 1795, 3 Dallas Reports, 54, Judge Paterson, delivering the opinion of the
Court, fully sanctions the resolutions of Congress in the case of the " Active,"
remarking that they contain " a course of reasoning which, in my opinion, is
cogent and conclusive." In the opinion of that learned Judge the supreme sovereignty claimed to be exercised by the Continental Congress even before the article
of Confederation, was a necessary attribute, and grew out of its revolutionary character. And he remarks in a somewhat lofty and imposing figure of speech-" As
to war and peace, and their necessary incidents, Congress, by the unanimous voice
of the people, exercised exclusive jurisdiction, and stood, like Jove, amidst the
deities of old, paramount and supreme."
t Journal of Congress, January 5th, 1780.




OLIVER ELLSWORTH.                    205
ters respecting appeals in cases of capture, then pending before the
Committee of Appeals, were transferred to the new Court.*  Under
the articles of Confederation, adopted by all the States, March 1st,
1781, this tribunal was re-organized, aud it continued to exercise its
functions till superseded by the Supreme Court of the United States.
Mr. Ellsworth remained constantly in attendance upon Congress
from the time of his return in December, 1779, until the following
summer. The post of a delegate in Congress was certainly not at that
time to be coveted. The first burst of enthusiasm which greeted the
opening of the Revolution had subsided; there was no longer an eclat
attending a service in the councils of the Confederacy; the prominent
statesmen who had set in motion the ball of the revolution were mostly
engaged in other spheres of action; the great orators who had sounded
the first blast upon the revolutionary trumpet had passed away; there
were no more laurels to be won; no honors to be gained; nothing to be
encountered but toil, responsibility, anxiety, embarrassment. The delegate, setting out on horseback from his rural New England residence,
to pursue his weary and tedious journey, perhaps alone, to Philadelphia, surely exhibited a courage as lofty and a temper as steady as
that which sustained the half-fed and half-clothed soldier of Washington in his winter encampment at Valley Forge. And it was fortunate
for the country that at this most perilous crisis, such men were found as
Ellsworth and his associates-men of solid, steady, resolute energy
of purpose, and unshaken firmness of mind, who, when ambition no
longer offered her glittering prizes, and fame held out no more her
tempting rewards, could listen calmly and earnestly to the voice of
principle and duty. Without such men in council, as well as in the
field, the contest must have closed; for the darkest hour of the revolution had arrived. The army was now upon the brink of dissolution.
The Continental treasury was bankrupt. Congress, in despair, had
resolved to issue no more bills of credit; and the States were unable
to advance their respective quotas of contribution.
It was at this moment that Ellsworth again took his seat in Congress. A resolution had just been adopted, changing the mode of
supplying the army from purchases, to requisitions of specific articles
on the several States. As preliminary to this system a committee
* Journal of Congress, May 24th, 1780.




206             LIVES OF THE CHIEF-JUSTICES.
was appointed to make the estimates, and to introduce every practicable reform in the expenditures. On this important committee Ellsworth was placed the very next day after his arrival. His labors here
were no doubt great; but as to their extent we have little means
of judging. The subject was kept under deliberation until the 25th of
February, the committee in the mean time having made their report,
which Congress adopted substantially as it came from their hands, apportioning among the respective States their various quotas of supplies.*
Among the important labors of Mr. Ellsworth during this session,
one other should be here properly mentioned, inasmuch as it is highly
honorable to all parties connected with it.  When that patriotic and
true-hearted American, Robert Morris, brought forward his scheme
for the establishment of a BANK, no one co-operated more cordially
and efficiently with the proposed plan than Oliver Ellsworth. On the
21st June, 1'80, a letter from the Board of War informed Congress
that a " number of patriotic persons" had formed a plan for the establishment of a Bank whose object should be the public service, and
desired a committee appointed to confer with them on the subject.
Whereupon a committee of three was chosen, of whom Ellsworth was
chairman. The next day he laid before Congress the plan of the
Bank, which, after some discussion, was adopted. Its sole object
was to establish a credit by means of which, without the least pecuniary advantage to the stockholders, relief could be furnished to a suffering and almost disbanded army. They proposed on their own credit
to transport three millions of rations and three hundred hogsheads of
rum for the use of the army, the public credit being pledged only for
their ultimate reimbursement. Morris himself headed the subscriptionlist of stock with the sum of ~10,000; and others, through his influence, augmented it to the sum of ~315,000.  And thus, when every
other expedient had well nigh failed, the genius of one man, united
with the well-timed efforts of those who promptly and efficiently sustained him, kept the American army on foot, and gave a new impulse to the war of independence. A successful result in finance, in
the public estimation, of course, sinks into insignificance in comparison
This system, like some others adopted by Congress, rather from desperation
than choice, was soon found to be utterly inefficient. It never, from the start,
sems to have had the concurrence of General Washington.




OLIVER ELLSWORTH.                       207
with the brilliant efforts of the statesman in the Senate, or the prowess
of the commanding general on the field; and yet the genius of the
Philadelphia banker at that moment was of more consequence to the
American cause than the tongues of the best orators in Congress, or
the swords of half the general officers in the army. What the country
needed then were supplies and credit, rather than men; and as an historical fact, the establishment of Morris's bank may be regarded as
not secondary in importance to the battle of Trenton. Had this taken
place in Rome, remarks the biographer of Morris, even in her most
virtuous age, posterity would justly have considered it as adorning one
of the fairest and most splendid eras of her histories.*
It may be added, that Ellsworth was continued chairman of the
standing committee to confer with the officers of the Bank, as occasion
might require; but, leaving Congress soon after, his place was filled
by the appointment of Mr. Adams.
Mr. Ellsworth was re-appointed, as usual, one of the delegates to
Congress from Connecticut, for the ensuing year.  He did not resume
his place, however, until the 4th June, 1181, when he appeared with
his colleague, Roger Sherman, and immediately entered upon the discharge of the important duties assigned him. From the scanty
records of the Congressional Journal of that period, it is now impossible to ascertain with precision not only what were the specific duties
assigned to individual members, but even in some cases what were the
daily subjects of the deliberations of Congress.  It appears, however,
that Congress was laboring with unabated energy to restore the public
credit, and to organize measures of public defence. Robert Morris
had been placed at the head of the finances; and Ellsworth was now,
* Many anecdotes are related of this eminent man, honorable alike to his practical sagacity, as well as his disinterested patriotism. One of the most characteristic of these anecdotes is that stated by Marshall, in a note to the Life of
Washington, as coming from the lips of Morris himself.-of his keeping a secret
agent in the army of Gen. Greene, with instructions to advance certain drafts and
sums of money to Greene, when every hope of supplies had failed. Thus Greene,
in ignorance of the character of this secret agent, was constantly kept upon
his own resources until the very last moment, and then, by an almost miraculous
interposition, was relieved from impending ruin without the slightest idea of the
quarter from whence the timely assistance came. Mr. Morris was one of the first
senators of the United States from the State of Pennsylvania. He died in 1806.
aged seventy-three years.




208             LIVES OF THE CHIEF-JUSTICES.
as he had been on the occasion of the establishment of the Pennsylvania Bank, one of his most ardent and efficient coadjutors. We find
about this time a variety of resolutions passed to facilitate the operations of Mr. Morris, all of which Ellsworth concurred in, if he did not
originate. One day the disposition and management of the public
money granted by his most Christian Majesty to the United States,
and the unsold Bills of Exchange drawn on Jay, Franklin, and Laurens, are committed to the superintendent of finances, to be applied
and disposed of; * at another time he is directed to take order for
discharging the debt due from the United States to the Pennsylvania
Bank; t and that the Board of Admiralty assign him the shares of
the United States in certain prizes to enable him speedily to launch
and equip for sea the ship "America" on the stocks at Portsmouth; 
and again, that he be furnished with an account of the several requisitions of money and supplies from the States, and that he take measures
for calling upon them, and pressing a compliance with the said requisitions. ~
It appears also from the Journal, that notwithstanding these united
efforts of Congress in the common cause of the country, yet no little diversity of opinions, and even jealousies, were at times manifested in
regard to the burdens to be borne by, and the distribution of supplies
among, the respective States. Candor and truth require it to be said
that on such occasions Ellsworth was generally found standing up
firmly, and, perhaps, with a too unyielding pertinacity, for the interests
of his own State. On a motion, that the Board of War forward to
North Carolina three thousand stand of arms for the use of the militia
of that State, Ellsworth voted to strike out the latter words, and insert "to be disposed of as the commanding officer of the Southern
department shall direct;" and the motion being lost, he voted in favor
of one made by his colleague, Mr. Sherman, giving the commanding
officer, General Greene, instead of the State authorities, the disposition of these arms among the State militia. l A few days after, his
vote is recorded in the negative on a proposition recommending the
* Journal of Congress, June 4th, 1781.
t Journal of Congress, June 22d, 1781.
t Journal of Congress, June 23rd, 1781.
~ Journal of Congress, June 28th, 1781.
11 Journal of Congress, July 7th, 1781.




OLIVER ELLSWORTH.                     209
States to loan money for the relief of the exiled inhabitants of South
Carolina and Georgia, and guaranteeing by Congress the repayment
of such money so loaned.*  So too, on a proposition that certain supplies furnished by the States for their respective troops should be
accredited to such States respectively as so much advanced on their
respective quotas of taxes, the name of Ellsworth, with that of every
other New England member, except Mr. Sullivan, of New Hampshire,
is found in the affirmative.t
It would be doing injustice, however, to Mr. Ellsworth, to suppose
that his action on these questions was influenced by any contracted or
illiberal sectional feeling. Of this he seems to have been incapable, as
his conduct on various occasions shows. Thus, soon after the vote on
the supplies, we find him at the head of a committee, of which Madison also was a member, devising the means of defraying out of the
public treasury the expenses of the delegates from North Carolina,
South Carolina, and Georgia, who were shut out by the events of the
war, from receiving remittances from their respective States, and
recommending suitable provisions for that purposes, which Congress
promptly adopted.J
Ellsworth remained in attendance upon Congress during the whole
summer, and rendered good service in various capacities, particularly
upon the executive committees on which he was placed, a sphere in
which his industry, his practical good sense, and his sound, discriminating judgment eminently fitted him for usefulness. Returning home
toward the latter part of August, he remained absent more than a
year, though in the mean time re-chosen at the annual session of the
Assembly one of the seven delegates from Connecticut to Congress.
He took his seat again in Congress on the 20th of December, 1,82,
and with the exception of a month or two, during the winter, remained
in constant attendance until after the removal, or rather flight, of that
body from Philadelphia to Princeton, in the latter part of June in the
following year. This was the last period of Mr. Ellsworth's service in
Congress. And it was a period, perhaps, more interesting to the
* Journal of Congress, July 21st, 1781.
f Journal of Congress, July 23rd, 1781.
t Journal of Congress, July 30th, 1781.
14




210             LIVES OF THE CHIEF-JUSTICES.
civilian and statesman than any which had preceded it. The confederation had now reached the turning point of its destiny. The war
of the revolution had been brought to a close; but the grand result
was still a problem, and the issue of the struggle lay darkly concealed
in the future. The great work of organization was now to be done;
the elements of empire lay scattered all around, and these were to be
gathered up, and brought together, and moulded in symmetrical form;
political institutions were to be reared; social rights secured; and civil
liberty consolidated upon the basis of republican institutions. Such,
in its broadest view, was really the labor devolving on the men who
represented the sovereignty of the Confederation at the close of the
revolutionary war, when Ellsworth once more took his seat in Congress. Never, since he had been a member of that body, had it exhibited a greater degree of intellectual vigor. Its deliberations were
now influenced, if not guided, by the splendid talents of a Madison,
a Rutledge, and a Hamilton, and around these, who might justly be
said to stand primi inter pares, were gathered Wilson, Carroll, Lee,
Bland, Dyer, Gorham, Ramsay, and others, whose names are equally
entitled to an honorable mention in history.
In the preceding sketch of Judge Rutledge I have alluded to some
of the important subjects which occupied the attention of Congress at
this period. Though Ellsworth did not participate in the discussions
growing out of these.subjects so prominently as some of his associates,
yet he occasionally mingled in the debates, and always with effectiveness and force. On the overshadowing question of the PUBLIC CREDIT,
and the raising of a revenue, he differed essentially from Hamilton,
Wilson, and Madison. These gentlemen were strongly desirous of
providing for a general and permanent revenue instead of State contributions; but the mode of raising it and enforcing the collection was
the main difficulty in question. The favorite proposition of Hamilton
was, that it should be " collected under the authority of Congress."
But this excited the jealousy of Ellsworth, who, even at this early period, viewed with disfavor any encroachments of the Federal power
upon the complete and absolute sovereignty of the States. " On the
one side," he remarked, " he felt the necessity of Continental funds for
making good the Continental engagements; but on the other desponded
of a unanimous concurrence of the States in such an establishment.




OLIVER ELLSWORTH.                      211
He observed that it was a question of great importance how far the
Federal Government can, or ought, to exert coercion against delinquent
members of the Confederacy; and that without such coercion no certainty could attend the Constitutional mode which referred every
thing to the unanimous punctuality of thirteen different councils.
Considering, therefore, a continental revenue as unattainable, and periodical requisitions from Congress as inadequate, he was inclined to
make trial of the middle mode of permanent State funds, to be provided at the recommendation of Congress, and appropriated to the
discharge of the common debt." *
This brought out Hamilton, who, with that impetuous boldness
which marked his character, scorning everything that looked like concealment in attack as well as defence, avowed as an additional reason
for wishing the revenue to be collected by the government, that " as
the energy of the Federal Government was evidently short of the degree necessary for pervading and uniting the States, it was expedient
to introduce the influence of officers deriving their emoluments from,
and consequently interested in, supporting the power of Congress." A
general smile from those members who concurred with Ellsworth, greeted these remarks of Hamilton. Mr. Madison himself regarded them
as " imprudent and injurious to the cause," observing that some of the
members took notice in private conversation that Hamilton had let
out the secret.t
Soon after this, Mr. Rutledge introduced his scheme for raising revenue by an impost of five per cent. ad 1alorem, with the proviso that the
money arising from such duties, and paid by any State, should be
passed to the credit of such State on account of its quota of the debt
of the Uliited States. Ellsworth was favorable to this mode of raising
revelue; but strongly opposed the proposition that each State should
be credited for the duties collected within its ports, as a proposition
eminently unjust to his own State, which did not import one-fiftieth
part of the merchandise consumed within it. He was opposed also to
Hamilton's plan of the appointment of collectors by Congress; but
was willing to compromise, provided the respective States had the
nomination of these officers. " He concurred," he said, " in the expe* Madison Papers, Vol. I. 291.
t Madison Papers, Vol. I. p. 291, note.




212             LIVES OF THE CHIEF-JUSTICES.
diency of new modeling the scheme of the impost by defining the period
of its continuance; by leaving to the States the nomination, and to
Congress the appointment of collectors, or vice versa, and by a
more determinate appropriation of the revenue. The first object to
which it ought to be applied was, he thought, the foreign debt. This
object claimed a preference, as well from the hope of facilitating further aids from that quarter, as from the disputes into which a failure
may embroil the United States. The prejudices against making a
provision for foreign debts which should not include domestic ones
was unjust, and might be satisfied by immediately requiring a tax, in
discharge of which loan-office certificates should be receivable. State
funds, for the domestic debts, would be proper for subsequent consideration," &c.*
The history of these discussions in regard to the public revenue, has
been briefly traced, and the result indicated, in the preceding sketch of
Rutledge,t which renders it unnecessary to pursue the subject farther
in this place. To the final compromise Ellsworth gave his cordial
assent. Immediately afterwards he was placed on a committee with
Hamilton and Madison to draft an. address to the people of the States,
recommending the sanction and adoption of the proposed measure.
The admirable address of the committee is from the pen of Madison.j
It was submitted to Congress, and unanimously ratified by that body
on the 26th of April following.
In the interval of the debates on the Public Credit, Congress found
time for a moment to revert to the great work of organizing the civil
departments of the Government, and to the arrangements necessary to
be taken in consequence of the peace. A   committee was ordered
whose object was " to provide a system for foreign affairs, for Indian
affairs, for military and naval establishments, and also to carry into
execution the regulation of weights and measures, and other articles of
the Confederation not attended to during the war."  It was scarcely
possible to entrust to any committee a more important charge than
this, embracing as it did the organization of some of the most essential
departments of civil administration. The selection of the committee,
* Madison Papers, Vol. I. pp. 309, 310.
t Ante, pages 148 to 151.
t Madison Papers, Vol. I. Appendix, No. 2.




OLIVER ELLSWORTH.                    213
too, indicates something of the sense entertained by Congress of the
pre-eminent talents and capacity of the members chosen to fill it.
They were Madison, Ellsworth, and Hamilton. It is worthy of remark, that no committee of special importance was ordered by Congress while these gentlemen were members of that body, without the
appointment of some one or more of them to serve upon it. With
Rutledge, who is frequently found their associate upon committees and
otherwise, they may be regarded as the leading and controlling minds
of that Congress. It would have been idle to seek in the body, of,
which they were members, or any other legislative body of the times,
men whose characters were stamped with a more striking and marked
individuality, and who were endowed with a wider diversity of talents
and faculties; yet, they seem to have been admirably adapted to
unite in harmonious effort, each strong in his own sphere of thought
and action, and apparently eliciting by contact of mind, a more
full and vigorous development of the peculiar talent possessed by the
other.
The session of Congress was abruptly terminated on the 21st June,
1783. On that day a small body of mutinous soldiers from Lancaster, who had marched into the city the day before for the avowed
purpose of obtaining a settlement of their accounts, surrounded the State
House where Congress had assembled. Although no act of violence
was committed, yet the soldiers remained in their position around the
hall, occasionally uttering abusive words, and wantonly pointing their
muskets to the windows of the State House. The revolutionary days
of Paris and the scenes of the French Convention were thus, on a less
formidable scale, anticipated by these disgraceful outrages of a mutinous soldiery. But Congress acted with firmness and spirit. A coimmittee was appointed, consisting of Hamilton, Ellsworth, and Peters,
to confer with the executive magistrates of Pennsylvania on the practicability of taking effective measures to put down the mutiny, and
support the public authorities. The conference, however, was unsatisfactory. It disclosed the humiliating fact that the authorities of Pennsylvania were not capable of protecting Congress in its deliberations.
They could not, as they alleged, induce their militia to act, nor did
they believe any exertions were to be looked for from them, except
" in case of actual vioknce to personal property."  A fresh conference




214            LIVES OF THE CHIEF-JUSTICES.
was ordered on the evening of the 21st, the committee being instructed, in case it was unsuccessful, to advise the President to adjourn
Congress, and summon the members to meet at Princeton or Trenton,
in New Jersey. This new conference produced only a repetition of
the doubts respecting the disposition of the militia to act; and it
was even questioned whether a renewal of the insult to Congress
would be a sufficient provocation. The committee being convinced
that there was "no satisfactory ground to expect prompt and adequate exertions on the part of the Executive of the State for supporting the public authorities," on receiving the final answer of the Council, advised the President, pursuant to their instructions, to adjourn
Congress, which was thereupon done, the members being notified verbally, and also summoned by proclamation to meet at Princeton.
On the re-assembling of Congress at Princeton, June 30th, Ellsworth and Hamilton made a report from their committee, giving a
detailed account of their conferences with the authorities of Pennsylvania, and its unsuccessful result. They also made a report from another committee on which they had been appointed, with Mr. Bland,
recommending that General Howe march to Pennsylvania with such
force as might be necessary to put down the mutiny, and bring the
mutineers to trial and punishment.  The report was unanimously
adopted. General Washington, who keenly felt the mortification of this
disgraceful outrage, had already taken prompt and efficient measures
to put down the mutiny and restore order. This was promptly effected without bloodshed, and most of the insurgents subsequently accepted furloughs under the resolution of Congress to that effect.*
Ellsworth remained a member of Congress but a short time after
that body removed to Princeton. His name is found on the Journal as
late as July 11th, 1783, soon after which period he was relieved by the
arrival of two of his colleagues, and returned home. It was his last service in the councils of the Confederacy. For, though chosen again
by the Connecticut Legislature at the annual election, as he had been
for six years previous, he declined to serve, and a successor was
accordingly appointed. The following year Congress conferred upon
him the appointment of commissioner of the Board of Treasury. This
* See Journals of Congress, June 30th and July 1st, 1783. Madcison Papers,
Vol I. p. 467.




OLIVER ELLSWORTH.                     215
also he declined. The period had arrived when his private affairs imperatively demanded his attention. Now that the crisis was over, and
the danger had passed, he thought that a long, and arduous, and
faithful public service entitled him to an honorable discharge. Besides, he considered his first fealty to be due to his native State, and a
place of honorable usefulness, if not of inviting ambition, was urged
upon him in a branch of her legislative council, and upon her supreme
judicial bench, which he did not feel at liberty to decline.
It was as a member of the Supreme Court of Errors, into which
he came on its organization in 1784, that the first judicial service of
Mr. Ellsworth was rendered. This court consisted of the LieutenantGovernor and the twelve assistants, or upper house of the Legislature,* and sat as an appellant court to review the judgments of the
Superior Court.t  Judge Ellsworth remained in it only a short time.
The following year an act was passed prohibiting the same person
from holding the office of Judge of the Superior Court and of the
Supreme Court of Errors at the same time; whereupon Ellsworth
resigned the latter place, as did also three of his associates, namely,
the Chief-Justice Richard Law, Roger Sherman, and William Pitkin,
all of whom retained their seats on the bench of the Superior Court.
The remaining member of the court was Eliphalet Dyer, one of the
signers of the Declaration of Independence, and a gentleman who
had distinguished himself by various important civil services during
the period of the revolutionary war.
The Superior Court of Connecticut had an extended, and indeed,
almlost unlimited jurisdiction. It embraced suits in equity as well as
at law, an appellate jurisdiction over the county courts, and an exclusive jurisdiction of all criminal cases relating to life, limb and banishment. At the time when Ellsworth came to the bench, the jurisprudence of Connecticut was in a very unsettled state. It was indeed still a question, how far the common law was to be regarded as
* In 1794, an act was passed, making the Governor also a member of the
court. The court continued in existence until 1807, when its powers were transferred to the nine Judges of the new Supreme Court.
t Ellsworth had been a member of the Council for several years, having been
first elected in 1780.




216              LIVES OF THE CHIEF-JUSTICES.
a rule of decision by the courts;* and some years later we find Judge
Root himself, in the preface to his reports, discussing the question,
whether there is any "common law in Connecticut; " denying that
the English common law was ever applicable to the colony, and broadly
asserting that their own was "derived from   the law  of nature and
revelation."t  Some of the earlier decisions, indeed, seem to sustain
this position. Thus, in a case decided about the time of Ellsworthls
admission to the bar, it was held, that the English doctrine of survivorship between joint tenants was exploded, and was not regarded
as the law in Connecticut; and Judge Root adds, that the principle
so established, had never since, to his knowledge, been contradicted or
shaken.t   So, too, among the earliest cases decided by Ellsworth in
the Superior Court are some which directly contravene established
common law principles; as for.example, in the case of Horsford vs,
Wright,~ which holds that the damages on a breach of covenant of
warranty in a deed, are to be ascertained by the value of the land,
and not, as by the English rule, which gives the consideration of the
deed, &c.
On the other hand, it is clearly evident, from the whole current of
these early Connecticut decisions, that not only was the common law
recognized in their courts, but that in some cases it was applied with
strict and technical precision. An instance of this is to be found in
the case of Hart rs. Smith,l! at the September term   of the court,
1786, wherein the majority of the court laid down the rule, that
assumpsit would not lie to recover back money paid by mistake in the
settlement of an account. It was intimated, that if, the mistake ap* " Our courts were still in a state of embarrassment," says Kirby, " sensible
that the common law of England, though a highly improved system, was not fully
applicable to our situation.:'
t In Fitch vs. Brainerd, 2 Day's Reports, 189, decided in 1805, the Court of
Errors, though denying that the common law of England, as such, ever had any
force in Connecticut, admits that it had become " necessary, in order to avoid
arbitrary decisions, and for the sake of rules, which habit had rendered familiar,
as well as the wisdom of ages matured, to make that law our own by practical
adoption-with such exceptions as a diversity of circumstances, and the incipient
customs of our own country required.": Phelps vs. Jepson, 1 Roots Reports, 48.  ~ Kirby's Reports, 3.
1\ Kirby's Reports, 127.




OLIVER ELLSWORTH.                         217
peared upon the face of the account, the party aggrieved might have
his remedy, but this remedy could be only by special action on the case.
It seems somewhat surprising that such a distinction, based upon
the merest technicality, should have made an impression upon a mind
so eminently practical as that of Roger Sherman;* and that, sitting in
a court with both equity and common law jurisdiction, he should have
* ROGER SHERMAN is less known as a lawyer and a judge, than as a statesman
and staunch revolutionary patriot. Born in 1721, of humble parents, he was apprenticed in his youth to a shoemaker, and continued to work at his trade for a
livelihood for some time after he arrived at age. But the cobbler's bench was not
the appropriate sphere of action for a mind like Sherman's. His active intellect,
thirsting for knowledge, soon rose superior to circumstances; and, in a few years,
by dint of untiring labor and perseverance, he exhibited, for the emulation of his
own age and posterity, an example of one of the most thoroughly "self-made
men" that America has produced. In 1743, we find the shoemaker on his bench
with a book fixed before him, engaged in studying the elementary mathematics
over his work; a year or two later he is employed in surveying, having mastered
the principles of that science; in 1748, he is making " astronomical calculations
for an almanac;" soon after we find him studying law, and in 1754, admitted an
attorney, commencing a career of honorable and successful practice. Sherman
served in the Connecticut General Assembly for many years prior to the Revolution. As is well known, he was one of the signers of the Declaration, and served
in Congress during nearly the whole period of the Revolutionary war. He was
a member of the Convention which framed the Federal Constitution, and of the
State Convention which ratified it. He was a member of the first House of Representatives of the United States, and on the resignation of Dr. Johnson, was
elected to the Senate, of which body he was a member at the time of his death,
in 1793.
Sherman had practised five years at the bar, when, in 1759, he was appointed a
Judge of the Litchfield County Court. Two years afterwards, on removing to
New Haven, he received a similar appointment in that county. In 1766, he was
elevated to the bench of the Superior Court, which office he held until his election to Congress in 1789, a period of twenty-three years. During nineteen years
of this period, he was also an assistant, or member of the council (annually
elected), and resigned his place there, with Ellsworth, on the passage of the law
prohibiting the same person from serving as a Judge of the Superior Court and
the Supreme Court of Errors. Mr. Sherman, besides his judicial duties, rendered
valuable service to his State in 1783, by revising, with the assistance of Judge
Law, the whole body of the Connecticut statutes. Throughout life he sustained
an unblemished reputation; and at the time of his death enjoyed an enviable reputation as one of the ablest and soundest jurists whom Connecticut has pro
duced. The modest inscription upon his tomb is a just tribute to his character and




218             LIVES OF THE CIIEF-JUSTICES.
insisted with such unbending rigor in preserving the boundaries which
limited the jurisdiction of each, and maintaining the line of demarcation between them. Ellsworth dissented from this judgment, and applied to the case what seems to us at this day, the more liberal, as
well as more correct principle. He thought it was an established proposition of law, founded on the most approved justice, that an action
would lie for money paid by mistake, whether in the settlement of an
account, or in any other way, and no matter whether the mistake appear upon the face of the account or not. It was sufficient that there
had been a settlement and a mistake, and that the defendant had received money of the plaintiff which he ought not in conscience to
retain. This point settled, he applies the equitable principle to a
common law action, holding that the plaintiff might recover in
assumpsit. Under the issue in this action, the defendant might disprove the facts set up by the plaintiff, or establish other and independent facts to rebut the equity of the plaintiff's demand.
So much of the labors of Ellsworth, while a Judge of the Superior
Courts of Connecticut, as have been preserved, may be found in
Kirby's Report, a single volume, containing the adjudged cases from
1785 to 1788. This was the first attempt, in Connecticut, to preserve
the lex non scripta. Up to 1785, the decisions of the courts had been
oral, and of course were not preserved. In that year the Legislature
passed an act requiring the Judges to render written reasons for their
decisions, when the pleadings closed in an issue of law. "This," remarks the reporter, "was a great advance towards improvement."
Still the business was but half accomplished, for the arguments of the
Judges, without a history of the case, as he also, somewhat naively,
remarks, "could not be intelligible."  In other words, the services of
a reporter were essential to rescue from oblivion the learning of the
judiciary, as well as to render their judgments "intelligible."  This
was the task of Mr. Kirby-a task undertaken con amore, diligently
prosecuted, and faithfully executed. The result, whatever may be
thought of it in a practical and utilitarian sense, is certainly a matter
of curious interest to the legal antiquarian. Like the renovated
tombstones of the Cameronian martyrs, under the pious chisel of Old
virtues:-" A man of approved integrity, a cool, discerning Judge, a prudent,
sagacious Politician, a true, faithful, and firm Patriot."




OLIVER ELLSWORTH.                     219
Mortality, these relics of the past, under the revivifying touch of Mr.
Kirby, stand out legible monuments of the early jurisprudence of
Connecticut.
Few of the reported cases in Kirby would attract attention in our
day, either on account of their novelty or importance. I may allude
in this place, however, to one of them, as it affords a fair samplethe best, on the whole, which remains-of Judge Ellsworth's method
in the examination of a legal question, and his mode of reasoning. It
is the case of Adams vs. Kellogg,* at the November term of the
court, 1186.  The point involved was, whether a married woman
might devise her real estate to her husband; and it brought up for
discussion the very interesting question, which has been debated with
great learning and skill since that time, whether the right to devise by
will, was or was not, a natural right, which might be exercised independent of statute. The opinion of Judge Ellsworth upon this point is different from some conclusions that have been arrived at in our day; I shall
not, however, undertake to aver that it is less correct, but leave him to
speak for himself. His opinion in the case,-which is on all points
adverse to the right of a feme covert to devise-is preserved in the
appendix to the report.  It seems to be a very carefully considered,
compact, and logical exposition of his views, bearing upon it the impress of a strong, and well disciplined, but cautious mind; a mind not
keenly suggestive, or strongly original, but constitutionally adverse to
innovations, preferring to follow the conservative doctrines of society,
and to stand with Lord Kenyon sitper antiquas vias, in the well-beaten
paths of the law. Without attempting a full analysis, the following
brief resitmm  will serve to indicate the general scope of the argument:
A married woman has neither a natural right to devise, nor a right
at common law, nor by statute.
1st. The right to direct the succession of estates by will is not a
natural but a municipal right.
2d. Even if it is a natural right, it does not follow that aferne covert
has it.
3d. It is a common law and not a statute disability that she is
under.
4th. The statute (by examination) furnishes as little authority for
* Kirby's Reports, 195.




220               LIVES OF THE CHIEF-JUSTICES.
a feme covert to make a will as the law of nature or the common law
had done before.
5th. Considerations of policy serve to confirm the opinion that she
has no power to devise.
"The possession of this power," he remarks, " would be as inconvenient for a feme covert, as unnecessary, because it would expose them
to endless teasings and to dangerous coercions, placed in the power of
a husband whose solicitations they cannot resist, and whose commands
in all that is lawful, it is their duty to obey;"-a wholesome doctrine
that perhaps might properly be recommended to the attention of our
modern reformers; and he adds, as a final reason of policy, " Their
wills, taken in a corner, and concealed from  all the world, till they
have left it, can afford but very uncertain evidence of the real wishes
of their hearts."*
There are also a few cases, or rather brief memoranda and notes of
cases of the old Superior Court, during Ellsworth's service, collected
in the first volume of Judge Root's Reports.  But the same remark
may be generally made in regard to their novelty and value, as of the
majority of the cases in Kirby.  I do not find in them  much worthy
of notice, as connected with Ellsworth's judicial character, especially
as the reasons for the judgments rendered are not given.   Occasionally, however, we find something beyond the ordinary and beaten
track of common law decisions, mainly growing out of that new class
of cases, which the revolutionary troubles had excited. In the dcci* Two years afterwards the Supreme Court of Errors reversed this judgment of
the Superior Court, after an elaborate argument at the May term, and a further
argument at the October term of the same year. That decision was followed by the
subordinate courts, and the law was considered as settled. Numerous wills, made
by fernes coverts, by the advice of the best counsel in the State, were approbated by
the Court of Probates. In 1805, the question again came before the Court of Errors, Judge Ellsworth being at that time a member of the court; and after a full
and very learned argument, the court unanimously reversed the judgment, and
came back to the principle established by the Superior Court in Adams vs. Kellogg. " That decision," says the court, alluding to the reversal of the judgment
of Kellogg vs. Adams, by the Court of Error, "we are constrained to say, after
much deliberation, was not law." A full report of this case, under the title of
Fitch vs. Brainard, is to be found in 2 Day's Conn. Reports, 163-194. The reasoning of the court in delivering this judgment, proceeds upon similar principles
with that of Judge Ellsworth, in Adams vs. Kellogg.




OLIVER ELLSWORTH.                      221
sion of such questions, Ellsworth and his associates were governed by
the broadest and most liberal principles of public policy. Thus, for
example, in one case, in an action against a deputy commissary for
army purchases, the court held the defendant not liable, he having
acted as the agent or servant of the public. In another, a negro slave
having enlisted and served in the continental army, with his master's
consent, is held to be manumitted by such service, and entitled to a
discharge from imprisonment, on habeas corpus.*
In some of these cases, too, there seems to be a disposition to relax
the strict severity of New England custom, as in Carpenter vs. Crane,t
where the defence set up to a promissory note was, that it was executed on Saturday night, at about two o'clock, " which was Sunday,
or Lord's day;" the note having been given to procure the release
from prison of the defendant's brother; the court, under these circumstances, innovating upon the good old New England custom, declared the note to be valid, inasmuch as there was no statute expressly
forbidding it, or declaring such note void.
In the discharge of his official functions, Judge Ellsworth, of course,
had frequent occasion to administer the criminal law to all grades of
offenders. It was a day when a principal object of legislation was
still thought to be to suppress vice and immorality, by statutory enactment, as well as to restrain the commission of crime. The judicial
edifice stood upon nearly the same foundation where the fathers of the
colony had placed it; and the ruthless hand of modern innovation had
not yet, to any great extent, impaired the ancestral structure. Crimes
and misdemeanors were then punished, not merely by a beggarly fine,
or a brief imprisonment, but by a genuine corporal punishmentwhipping on the bare back, cropping, branding with a hot iron, exposure with a halter tied round the neck, &c. Some curious cases are
* This was the case of Jack Arabus, who was a member of a company of blacks
mustered into the continental service, and attached to one of the Connecticut regiments of the line. After Jack was discharged, his master, Ives, claimed him as
his servant. Jack fled to the eastward, and his master having pursued and overtaken him, brought him to New Haven, and lodged him in jail. Jack sued out a
habeas corpus, and on a summary hearing before the Superior Court, was discharged, on the ground that he was a freeman, absolutely manumitted by his service in the army. —1 Root's Reports, 93.
t 1 Root's Reports, 98.




222               LIVES OF THE CHIEF-JUSTICES.
still to be met with, illustrative of the state of criminal jurisprudence
in Connecticut, when Ellsworth administered the law    as one of the
judges of the Superior Court.   Thus, for example, we find in a cotemporary newspaper, the following sentences, passed at a session of the
Supreme Court, at Hartford, in January, 1785: "Moses Parker, for
horse-stealing, to sit on the wooden horse * half an hour; to receive
fifteen stripes; pay a fine of ~10; be confined in gaol and the workhouse tl'ee months; and every Monday morning, for the first month,
to receive ten stripes, and sit on the wooden horse, as aforesaid."
" Moses Lusk, of Middletown, for counterfeiting treasurer's certificate, to receive twenty stripes; pay a fine of ~20, and be confined six
months."
"Judah Benjamin, for polygamy (he having married a wife in
Symsbury, when he had another living in Massachusetts), to receive
ten stripes; be branded with the letter A, and wear a halter about
his neck during his continuance in this State; and if ever found with
it off, to receive thirty stripes."
The punishment of cropping and branding was not an uncommon
sentence for crime at that tine in Connecticut.   Thus, in the case
last mentioned, the branding was in the forehead with the letter A;
in the case of burglary, cropping and branding with the letter B; of
counterfeiting, whipping or branding with the letter C, or both, &c.
* The " wooden horse" seems to have been an institution peculiar to Connecticut,
and an essential element in the administration of her penal laws. The execution of
the sentence in this particular case is described in the " Connecticut Courant" of
that day, in the following ludicrous manner: " One of the rogues was sentenced
to ride the wooden horse, that wonderful refinement of punishment in our modern
statutes. Accordingly, on Thursday last the terrible machine was prepared, consisting of one simple stick of wood, supported by four legs, and by order of the
Sheriff placed in State House Square.  Hither the prisoner was conducted, and
being previously well booted and spurred by the officer, was mounted on the
oaken steed. Here he continued for half an hour, laughing at his own fate,
and making diversion for a numerous body of spectators, who honored him
with their company. He took several starts for a race with the best horses in
the city, and it was difficult to determine who were most pleased with the exhibition-the criminal or the spectators. After this part of the sentence had
been legally and faithfully executed, the culprit was dismounted, and led to
the whipping-post, where the duties made him more serious. The whole was
performed with great order and regularity."




OLIVER ELLSWORTH.                         223
In Ellsworth's time, the offence of adultery, which the early laws of
Connecticut punished with death,* subjected the offender to whipping
on the naked body, branding the letter A on the forehead with a hot
iron, wearing a halter on the neck over the garments as long as the convict remained in the State, and as often as found without such halter,
to be whipped, not exceeding thirty stripes.t  It might be thought that
the ignominy of the punishment was sufficient either to restrain the
commission of the offence entirely, or to prevent a conviction; such,
however, was not the fact; as is evident in Benjamin's case.       An
other very curious case as reported in Kirby, was argued before Ellsworth and his associates at the August term of the Court 1186.t One
William Green had been indicted under this statute and convicted on
the verdict of a jury.   The evidence showed that Green had been
traced to the house of his neighbor Samuel Rossetar, and found in
Rossetar's nuptial couch with "Tryphena, the wife of said Rossetar, at a little after ten o'clock in the evening,"-evidence which
might be thought strongly circumstantial, and perhaps tolerably con* The early criminal code of Connecticut recognized twelve capital offences, to
which two more were afterwards added, and all of which were founded on the
strict precepts of the Levitical law. Some of them were of a savage and almost
Draconian sternness, as for example:" If any man or woman be a witch, that is, hath or consulted with a familiar
spirit, theyshall ba put to death."  Ex. 22: 18. Levit. 20: 27. Deut. 18: 10,11.
"If any person shall blaspheme the name of God the Father, Son, or Holy
Ghost, with direct, express, presumptuous, or high-handed blasphemy, or shall
curse in the like manner, he shall be put to death."
The 13th of these laws provided that if a child above the age of sixteen should
curse or smite his natural father or mother, he should be put to death; founded
on Ex. 21: 15-17. Levit. 20: 9.
And the 14th, the most singular, perhaps, of all, that a stubborn and rebellious son, "who will not obey the voice of his father, or the voice of his mother, and when they have chastened him, will not hearken unto them," might,
if sixteen years of age, on complaint of the parents, be brought before the civil
magistrate, and condemned to death. Deut. 20: 18-21.
(See Conn. Hist. Collections, p. 16.
t This curious law remained on the Statute book, I believe, ior so nl yVe rs after
this period. In the revision of 1821, the punishment for this offence is, imprisonment in Newgate prison for the man, and in the county jail for the woman for a
period not exceeding five, nor less than two years.
J The State vs. Green, Kirby's Report, 87.




224            LIVES OF THE CHIEF-JUSTICES.
elusive by a jury in our day. Not so, however, thought the ingenious
counsel for the prisoner, who now moved to arrest the judgment on the
ground that the corpus delicti had not been proved. There was another
statute defining in terms exactly the offence which the evidence established, the punishment of which was simply whipping not exceeding
thirty stripes; and the efforts of the prisoner's counsel of course were
to bring the case within the latter statute, and thus escape the branding
and the wearing of the halter. After solemn argument and consideration,
the Court overruled the motion on the perfectly obvious and strictly legal
principle that the jury were the proper judges of the weight of the evidence on the whole circumstances of the case, and their verdict must
therefore be regarded as conclusive. We hear no more of the unfortunate Mr. Green; but he doubtless paid the full penalty of his transgression.
The proposition to appoint delegates to a Convention to frame a
plan for a Federal Government, was acceded to with reluctance, and
almost at the last moment, by Connecticut. The Anti-Federal party
in that State was numerous and persevering, and up to within a few
weeks of the meeting of the Convention it was doubtful what course
the Assembly would adopt. " Of Connecticut alone doubts are entertained," writes Madison to Jefferson, in the latter part of April, 1787.
These doubts however were soon after solved.  The Assembly determined to appoint delegates to the Convention, and selected three of
the most eminent citizens of the State, Oliver Ellsworth, Roger Sherman, and William Samuel Johnson.
Ellsworth took his seat in the Convention a few days after it was
organized and just before the respective propositions of Randolph and
Pinckney, were submitted. For some weeks he was a silent, but not
inattentive listener to the interesting discussions which took place in
that body. Indeed, though he subsequently mingled freely in the debates of the Convention, he never aspired to act a prominent and leading part in sketching out the plan of the new Government. It was a
sphere not so well adapted perhaps to his talents as that which he
had previously, and which he subsequently, filled. His mind was not
inventive; he was better adapted to aid in the execution, than in the
construction, of a plan of government;-to organize and carry out a
system in detail, than to originate it. Hence the great work of fram



OLIVER ELLSWORTH.                    225
ing the new Government, fell to the hands of others. But in the
arrangement of its details, in harmonizing its various branches, and especially in preserving those checks and balances so necessary to the
success of the projected Constitution, he rendered the most signal and
valuable service. He came to the Convention with two ideas fixed
and indelibly impressed on his mind. One of these was the preservation of the identity, the influence, and the sovereignty of the respective States: and the other, the engrafting upon the new system, as far
as practicable, those simple democratic principles, which were embodied
in the institutions and government of his native State. His entire
course in the Convention seems to have been guided and influenced by
these ideas. One of his earliest acts was to second a motion of his.
colleague Sherman, that the members of the first branch of the National
Legislature be elected every year, in opposition to Mr. Rutledge, who
proposed two years, and Mr. Madison, who was in favor of three;
the people, he said, were fond of frequent elections, and might be safely
indulged in one branch of the Legislature.* Soon after, on the consideration of the resolution that " A national Government ought to
be established, consisting of a Supreme Legislative, Executive, and Judiciary," he moved to.strike out the word national, and retain the
proper title, the United States. "He could not admit the doctrine,"
he remarked, " that a breach of any of the Federal articles could dissolve the whole. It would be highly dangerous not to consider the
Confederation as still subsisting. He wished also the plan of the Convention to go forth as an amendment of the articles of the Confederation, since under this idea the authority of the Legislatures could ratify
it. If they are unwilling, the people will be so too. If the plan goes
forth to the people for ratification, several succeeding Conventions
within the States, would be unavoidable. He did not like these Conventions. They were better fitted to pull down than to build up Constitutions."t For similar reasons he opposed the proposition to pay
the representatives out of the national treasury, and moved to substitute payment by the States, in opposition to Hamilton, Madison, Wilson and others, remarking with much warmth: "If we are so exceedingly jealous of State Legislatures, will they not have reason to be
* Madison Papers, Vol. II. pp. 846, 929.
t Madison Papers, Vol. II. pp. 908, 909.
15




226             LIVES OF THE CHIEF-JUSTICES.
equally jealous of us? If I return to my State and tell them we made
such and such regulations for a General Government, because we
dared not trust you with very extensive powers, will they be satisfied?
Nay, will they adopt your Government? And let it ever be remembered that without their approbation your Government is nothing
more than a rope of sand." *  On the question whether the members
of the second branch should be chosen by the Legislatures of the
States, Ellsworth was no less resolute and determined in his opposition to the advocates of a consolidated Government, and in support of
the sovereignty of the States. He urged the necessity of maintaining
the existence and agency of the State Governments; without their
co-operation it would be impossible to support a republican government over so great an extent of country; an army could scarcely render it practicable: "If the principles and'materials of our Government," he added, "are not adequate to the extent of these single States,
how can it be imagined that they can support a single government
throughout the United States? The only chance of supporting a general government lies in grafting it on those of the individual States." t
Ellsworth's solicitude for the preservation of the rights and sovereignty of the States, was again exhibited in a striking manner in the
discussions arising on the great question which agitated and divided
the Convention, as to the ratio of State representation in the National
Legislature. In these discussions he took a decided and prominent,
and it may be added a controlling part, for upon him mainly rested the
labor of sustaining the rights and interests of the smaller States against
that splendid array of intellectual strength which had espoused the
other side. The great capacity of Ellsworth on this occasion was
exhibited to the best advantage. His coolness, his adroitness, his
moderation, the weight and momentum of his attacks, t'Cl unyielding
pertinacity and firmness of his resistance, formed altogether an invincible obstacle to the advocates of consolidation. It is not too much to
say that to the resolute efforts and persevering energy of Oliver Ellsworth, more than to any other man in the Convention, is the country
* Yates' Minutes, Elliott's Debates, Vol. I. p. 478. He subsequently made an
ineffectual effort to strike out the provision that Senators be paid out of the national
treasury. Madison Papers, Vol. I. p. 970.
t Madison Papers, Vol. II. pp. 957, 958.




OLIVER ELLSWORTH                     227
indebted for the final compromise of the Constitution which gave to
each State an equality of representation in the Senate. Upon this
point, having reluctantly yielded the equality of representation in the
other branch, he stood firm and immovable. It was a point beyond
which compromise itself was impossible; nor could any efforts avail to
move him a hair's breadth from the position he had taken in regard to it.
The greatest names in the Convention were arrayed against himMadison, Hamilton, Franklin, Randolph, Pinckney, Governeur Morris, Rufus King-a phalanx, that it might have been supposed, would
have overwhelmed all opposition at a single charge. But Ellsworth
stood firm and undismayed, and for two days bore up almost singlehanded and alone in the unequal contest, aided only by the occasional
interposition of his colleague Sherman, and one or two others, and the
fiery philipics of Mr. Bedford, of Delaware, which served to divert the
attacks if they did not materially weaken the strength of their opponents.
In the preceding sketch of Judge Rutledge,* I have briefly traced
this animated and stormy debate as it is found preserved in the
notes of Mr. Madison, who, himself, took a prominent part in it. It
commenced on the 29th of June, on Ellsworth's motion that " the rule
of suffrage in the second branch be the same as that established in the
articles of Confederation "-that is, that each State have an equal
vote, a contrary rule having just been adopted in regard to the first
branch. In support of his motion Ellsworth observed: " He was not
sorry, on the whole, that the vote just passed, had determined against
this rule in the first branch. lie hoped it would become a ground of
compromise with regard to the second branch. We were partly national,
partly Federal. The proportional representation in the first branch
was conformable to the national principle, and would secure the large
States against the small. An equality of voices was conformable to
the Federal principle, and was necessary to secure the small States
against the large. He trusted that on this middle ground a compromise would take place. He did not see that it could on any other, and
if no compromise should take place, the meeting would be not only in
vain, but worse than vain."  He then proceeded in the discussion of
the question with admirable felicity and directness of argument, and
* Ante, pages 163-167.




228             LIVES OF THE CHIEF-JUSTICES.
advanced his reasons for desiring to preserve the Federal principle in
the Constitution of the national Senate, concluding with the earnest
and stirring appeal: "Let a strong Executive, Judiciary, and Legislative, be created, but let not too much be attempted by which all
may be lost. He was not in general a half-way man; yet he preferred
doing half the good we could, rather than do nothing at all. The
other half may be added when the necessity shall be more fully experienced." *
The next day the discussion was continued with renewed vigor,
Judge Wilson opening the debate in opposition to Ellsworth. He
maintained, with great plausibility of argument, that the Convention
was framing a government for men, and not for the imaginary beings
called States, and therefore, the proposed rule of representation would
be unjust, as it would subject the majority to be ruled by the minority.
Ellsworth again took up the argument, and replied to these positions,
in a train of reasoning that no one who has witnessed the practical
workings of the Federal system in our day, would be inclined to controvert. "The power is given to the few," he says, " to save them
from being destroyed by the many. If an equality had been given
to them in both branches, the objection might have had weight. Is
it a novel thing that the few should have a check upon the many?
Is it not the case in the British Constitution, the wisdom of which so
many gentlemen have united in applauding? Have not the House of
Lords, who form so small a proportion of the nation, a negative on
the laws, as a necessary defence of their peculiar rights against the
encroachments of the Commons? No instance of a confederacy has
existed in which an equality of voices has not been exercised by the
members of it. We are running from one extreme to another. We
are razing the foundations of the building, when we need only repair
the roof."t
As the discussion increased in warmth and intensity, Ellsworth
found himself surrounded by a formidable and crushing opposition.
The attack from the heavy batteries of Wilson's learning and logic,
was followed by a combined onslaught from all sides. Every variety of
weapon known to the practice of legitimate discussion was brought
* Madison Papers, Vol. II. pp. 996-998.
t Madison Papers, Vol. II. p. 1003.




OLIVER ELLSWORTH.                    229
to bear, to drive him and those who stood with him, from the position
they maintained with such invincible firmness-the keen and unerring
arrows drawn from the inexhaustible quiver of Madison's forensic skill;
the blunt and homely, but ponderous weapons of Franklin's common
sense; the rapid and effective artillery of Rufus King's gorgeous declamations;-but all in vain. The phalanx of the opposition stood
firm, with Ellsworth at its head, armed at all points in proof. Madison, while complimenting the " admirable and close reasoning " of his
opponent, endeavored in vain to weaken his position and overthrow his
argument; Franklin hinted at a compromise that would have been
substantially a victory, and enforced his views by a practical and characteristic illustration, but to no purpose; King attacked, with eloquent invective, the "phantom of State sovereignty," and endeavored
to dispel " this wonderful illusion," without effect. Though the field
of argument was exhausted, the Connecticut delegate still stood unconvinced and still unyielding. His answer to all his opponents was
the earnest and emphatic announcement which conveyed the unalterable conviction of his mind: "What he wanted was domestic happiness. The National Government could not descend to the local objects on which this depended. It could only embrace objects of a
general nature. He turned his eyes, therefore, for the preservation
of their rights to the State governments. From that alone he could
derive the greatest happiness he expected in this life. His happiness
depended on their existence, as much as a new born infant on its mother for nourishment. If this reasoning was not satisfactory, he had
nothing to add that could be so."*
The result of the day's discussion was the change of a single vote
in Georgia, and the consequent division of that State, and of all the
States upon the main question. A committee of conference was
thereupon ordered, whose action has been noticed in another place.t
Ellsworth was appointed a member of it, but for some cause, which I
have not been able to ascertain, did not serve, his place being filled
by his colleague, Mr. Sherman. With the every way fortunate result
of the labors of that committee, however, he expressed himself fully
satisfied. "Some compromise was necessary," he remarked, " and he
saw none more convenient or reasonable."t
* Madison Papers, Vol. II. p. 1014.:  Madison Papers, Vol. II. p. 1032.
+ lnte, pages 165-167




230             LIVES OF THE CHIEF-JUSTICES.
A full review of the acts and services of Ellsworth, during the session of the Convention, would extend this sketch to undue limits, and
I shall, therefore, in passing, barely glance at the more important
matters with which his name is connected, and which may serve to
illustrate the nature of his opinions.
He was appointed upon the committee of detail, of which Rutledge
was chairman, and which prepared and reported to the Convention,
the first official draft of a Constitution.
He participated in the debates on the constitution of the Executive
office, and gave free expression to his views in regard to it. He
moved that the Executive be appointed by electors chosen by the
Legislatures of the States, in a certain specified ratio.* Subsequently,
he moved that the Executive be appointed by the Legislature, except
when the magistrate last chosen shall have continued in office the
whole term for which he was chosen and be re-eligible; in which case
he should be chosen by electors appointed by the State Legislatures.
This, he thought, would at once provide for the re-election of a deserving magistrate, and secure his independence of the Legislature.t
He favored the motion of Mr. Wilson, which was also supported by
Madison, that the Supreme National Judiciary should be associated
with the Executive in the revisionary power- -a proposition whose
singular incongruity was not perceived by some of the best minds
in the Convention, but which Rutledge pointed out in the brief but
emphatic sentence, that "the Judges ought never to give their opinion
on a law, till it comes before them."
He was opposed to the project of clothing the Executive with
power to nominate the Judges. Though he was willing to leave with
the Executive a negative on a nomination made by the Senate, yet
he preferred to vest that body, absolutely, with the power of appointment. The Executive, he remarked, will be regarded by the people
with a jealous eye; and every project for augmenting, unnecessarily,
his influence will be disliked.~
Ellsworth was a strenuous opponent of every attempt to confer on
the National Legislature the power to interfere with the elective
franchise in the States, or to impose unnecessary restrictions on the
* Madison Papers, Vol. IL. p. 1149.: Ibid., Vol. II. p. 1162.
t Madison Papers, Vol. II. p. 1198.  ~ Ibid., Vol. II. p. 1173.




OLIVER EILSWORTH.                     231
qualifications of its own members. To the suggestion of Gouverneur
Morris, proposing a freehold qualification for electors, he remarks:
"The right of suffrage is a tender point, and strongly guarded by
most of the State Constitutions. The people will not readily subscribe to the National Constitution if it should subject them to be
disfranchised. The States are the best judges of the circumstances
and temper of their own people."* And, on a subsequent occasion,
he earnestly and effectively opposed the proposition to require a freehold qualification for the offices of President, Judges, and members of
Congress. It was better, he thought, to leave the whole matter to
the discretion of the Legislatures than to insert a provision for it in
the Constitution.t  His views in regard to the qualification of aliens
were of a similar nature. He disapproved the motion of Col. Mason
making a residence of seven years a requisite of citizenship, and proposed in lieu of it a residence of one year, though expressing his willingness to assent to three.4 In like manner he opposed Mr. Morris'
proposition requiring a residence of fourteen years as a qualification
for the Senatorship, believing, as he remarked, that it would discourage meritorious aliens from emigrating to this country.~
The simplicity of his views in regard to the organization of the
government, and his partiality to those elementary democratic ideas
which he had imbibed from the institutions of his native State, were
also evinced on various other occasions. Not only did he contend
that the members of Congress should be paid by the respective
States, as has been already remarked, and that the members of the
popular branch should be chosen annually, but he saw no difficulty in
carrying out every branch of the Federal administration through the
medium of frequent elections, and short periods of official service.
He advocated also the ineligibility of members of Congress to any
other office;11 and even discountenanced the project of taking the
yeas and nays in the Federal legislature, preferring, with his colleague
Sherman, the primitive New England mode of determining a question
* Madison Papers, Vol. III. p. 1250.
t Madison Papers, Vol. III. p. 1284.
t Madison Papers, Vol. III. pp. 1258, 1259.
~ Madison Papers, Vol. III. p. 1273.
~ Madison Papers, Vol. III. p. 1323.
[] Madison Papers, Vol. III. P. 1323.




232             LIVES OF THE CHIEF-JUSTICES.
by voices.* On the proposition to authorize Congress to emit bills
on the credit of the United States, he thought a favorable moment
had come to shut and bar the door forever against paper money.
"Paper money," he remarked, " can in no case be necessary. Give
the Government credit, and other resources will follow. The power
may do harm, never good." And to that singular proposition, favored
by Charles Pinckney and other influential members, whose object was
to vest Congress with power to annul the laws of the States, he manifested a staunch and resolute resistance-a proposition which Wilson,
carried away with the enthusiasm of the moment, considered " as the
key stone wanted to complete the wide arch of government we are
raising," but which the more penetrating intellect of Rutledge condemned as an act which of itself alone " would damn, and ought to
damn, the Constitution."t
Mr. Ellsworth does not seem to have been present during nearly
the whole of the last month of the Convention, nor is his name found
attached to the Constitution as it came from the hands of its framers.
The omission, however, is entirely accidental, as he was from the
moment of its adoption, the firm and unswerving friend of the projected system. This is evident from his letter to the Governor of Connecticut, signed by himself and his colleague Sherman, enclosing a
printed copy of the instrument and explaining its provisions. At the
close of this letter, the delegates remark: " We wish it may meet the
approbation of the several States, and be a means of securing their
rights, and lengthening out their tranquillity."t
The Connecticut Convention assembled about the 1st of January
following. Ellsworth was of course a member, and upon him mainly
devolved the duty of defending the new plan of government before
that body. The task, however, was not a difficult one, for a large
and controlling majority was favorable to the new Constitution.~
* Madison Papers, Vol. III. p. 1291.
t Jlnte, page 165. Madison Papers, Vol. III. p. 1411.
t 1 Elliot's Debates, p. 431.
~ From the final result in the several States it would seem that the compromise of the Constitution was regarded as a substantial triumph by the smaller
States. The votes of New Jersey and Delaware were unanimous for the ratification, while those of the three larger States were comparatively close.




OLIVER ELLSWORTH.                    233
Ellsworth, however, relaxed no effort and spared no labor in presenting
the subject fully and favorably to the Convention. As one of the delegates to the late assembly at Philadelphia, he appropriately opened the
discussion. The outlines of this speech are preserved,* It is exceedingly
plain, and without the slightest pretensions to rhetorical elegance, though
certainly clear, forcible, and direct. The main argument is drawn
from a consideration of the value and necessity of the Union, and its
adaptation to the wants and interests of the State of Connecticut.
This idea he enforces by a brief, though by no means striking reference
to the histories of ancient and modern confederacies. It is not difficult, however, to see that he is more at home in the practical examination of the subject under the light of existing facts.  As, for
example, when, with true professional tact, and genuine New England
shrewdness, he presses the argument on the score of interest and policy,
and urges the necessity of the Union on the ground of economy as
well as of safety. The small States, he urges, can alone be saved by
the Union. Nothing but the Union can preserve Connecticut from
the rapacity of her two grasping neighbors, Massachusetts and New
York;-and his reasoning loses not a particle of its point from the
quaint and homely illustration with which he enforces it: " If divided,
what is to prevent the large States from oppressing the small?
What is to defend us from the ambition and rapacity of New York,
when she has spread over that vast territory which she claims and
holds? Do we not already see in her the seeds of an overbearing
ambition?  On the other side there is a large and powerful State.
Have we not already begun to be tributaries? If we do not improve
the present critical time-if we do not unite, shall we not be lile
Issachar of old, a strong ass crouching down between two burdens"?t
The debates of the Connecticut Convention, with the exception of
brief sketches of some half dozen speeches collected from cotemporary
publications, are lost. Of these speeches two are by Ellsworth, who
seems to have been the acknowledged leader of the Convention. The
first of these was his speech on opening the debate which has just been
noticed, and the second, delivered a few days after, was on the power
of Congress to lay taxes. The latter is by far the more happy effort,
* See 2 Elliot's Debates, pp. 189-193.
t 2 Elliot's Debates, 190.




234:           LIVES OF THE CHIEF-JUSTICES.
and may be regarded as the best preserved specimen of its author's
talent as a debater. He addresses himself to the subject with characteristic plainness of speech, but with admirable skill and force of reasoning, and conclusively refutes in detail each of the objections urged
against vesting the general government with this power. The arguments of Ellsworth, cool, dispassioned, ingenious, and searching, were
thoroughly adapted to the character of his audience; and we can well
conceive the truth of the remark which has been made of them, that
they left a deeper impression upon the minds to which they were
addressed than would have been produced by the brilliant efforts of
Ames or the impassioned appeals of Hamilton.
The Constitution was ratified by a large majority. Out of one
hundred and sixty-eight votes only forty are recorded in the negative,
a result that might be considered complimentary either to the influence
and talent of Ellsworth, or the good sense of the representatives of the
Connecticut people.
As one of the foremost men in the State, Ellsworth, of course, could
not be overlooked in the organization of the new government. He
was chosen one of the senators of the United States, his colleague
being William Samuel Johnson, lately appointed to an office which his
father had filled before him, that of President of Columbia College.
The first Congress met at " Federal Hall," in the city of New York,
on the 4th of March, IT89; but to the mortification of the more
zealous Federalists, says the historian, only eight senators and thirteen
representatives made their appearance. Of these eight senators Ellsworth was one, and patiently waited, from day to day, with his colleagues, until the 6th April, when Mr. Richard Henry Lee appeared,
making twelve senators in all, which formed a quorum; the Senate
then organized and proceeded to business.
Mr. Ellsworth's services in the Senate through the seven years which
comprised'the period of his connexion with that body, were of the most
valuable character. It was indeed a field of laborious and important,
as well as honorable service, and it required talents of a high order to
enter upon it with success and the hope of usefulness. The whole
machinery of the new government was to be put in motion; the substantial frame work which the Federal Convention had raised, was to
be elaborated by the National Legislature into the complete and




OLIVER ELLSWORTH.                     235
perfect structure fit to subserve the useful purposes of its creation.
The work of invention was now to give place to the labor of detail;
theoretic ideas to practical results; the devising of systems and plans
of government to the organization of the means of execution. Every
thing was to be organized-the civil department, the diplomatic department, the judicial department, the treasury, the customs, the postoffice, the army and navy, and, in short, all the departments of administration. And here Oliver Ellsworth found the true sphere of his
usefulness. It was here that the practical value of such talents as he
possessed was felt and known. Among all his associates, during the
whole period of his service in the Senate, it would be difficult to point
out one who may justly claim the possession of equal capacity in everything pertaining to the utilities of legislation. It has been remarked
that in no portion of his career did he exhibit a greater degree of progressive improvement and a more continued and vigorous development
of his intellectual faculties than during these years of his service in the
Senate. His labors were arduous, often embarrassing; but he applied
himself to them with that plodding perseverance and unwearied industry, which in his hands were the potent and sure weapons of success.
Some of his mental labors, during this period, if the account that has
come down to us be correct, were not only of a tedious but even of a
painful character. To him a great intellectual achievement was not a
sudden and happy inspiration of genius. The thought did not flash
across his mind with the vividness and velocity of a sunbeam; it was
produced only through the painful and toilsome process of mental travail.
While engaged in these important investigations, we are told, he would
pass whole days, and sometimes nights, in walking up and down his
chamber, absorbed in mental labor. It was impossible to divert his
attention toward any other object before he had thoroughly formed his
conclusions on the subject which engaged him. When, at last, the
question which had thoroughly excited him was finally determined, he
appeared at once relieved from a weight of thought, and was left
languid and exhausted, as if he had been wearied out by severe bodily
labor.*
When the first Congress met, and, indeed, for four or five years
afterwards, the Senate, which in its creation had excited such popular
* 3 Anal. Magazine. Sketch of Ellsworth.




236             LIVES OF THE CHIEF-JUSTICES.
jealousies and called out such violent attacks, was an entirely different
body from what it subsequently became, and now is. A certain degree
of mystery enshrouded its deliberations, and it maintained a distant
formality and an aristocratic reserve which by no means contributed
to conciliate the popular good will. One of its earliest disagreements
with the other House arose upon a mere point of etiquette, namely, as
to what title or style should be used in addressing the President of the
United States. The title of " His Excellency" had been rejected as
not sufficiently respectful, and a committee of three, of which Ellsworth
was a member, subsequently reported that in their opinion it would be
proper to address him as " His Highness, the President of the United
States, and Protector of their liberties," which report the Senate
seemed inclined to adopt. But the House of Representatives, staunch in
its republican principles, refused to yield, or recognize any other title
for the President than that " expressed in the Constitution." Before
a committee of conference could report, the House had already addressed the Executive in the simple and appropriate form which has ever
since been observed, " To the President of the United States;" a style
of address which the Senate, though with some disgust, thought it
expedient, "for the present," to adopt.
At this early period, too, the doors of the Senate Chamber were
closed, and the debates were secret, which was another source of
popular animadversion and jealousy. This continued during nearly
the whole period of Ellsworth's service, and we are thus cut off from
a vast deal of interesting information; for while the debates of the
other branch remain in a tolerable state of preservation, nothing but
the merest skeleton outline of the Senate's proceedings, as it appears
in its journal, is left. We can therefore, do nothing more than conjecture what may have been the eloquence of such orators as Rufus
King and Richard Henry Lee, the statesmanship of such tried
patriots as Charles Carrol and Robert Morris, or the judicial wisdom
of such lawyers as William Paterson and Oliver Ellsworth. The
Senate continued to adhere to this secret session system for some time
with blind and persevering tenacity. Mr. Monroe made an effort to
have the sessions public, in the spring of 1791, but the motion was
voted down, as a similar one had been the previous session, by a vote




OLIVER ELLSWORTH.                     237
of nine to seventeen, Ellsworth being in the negative.*  And it was
not until four years afterwards that the doors were ordered to be
opened, and the Senate became convinced that the deliberations of a
free legislative body should be not only free but PUBLIC. From that
day the Senate regained the public confidence, and continued to
increase in the popular esteem, until it came to be regarded, as it now
is, with marked and peculiar reverence, as the grand conservative
balance-wheel of the Federal system.
The secret sessions of the Senate, and the meagre outlines of its history, which the journal presents, of course render it impracticable to
determine what precise share Ellsworth is entitled to claim in most of
the important public measures discussed before that body. Of one
great act, however-the organization of the Federal Judiciary-an
act intimately connected with his professional, as well as senatorial
fame, we can speak with more certainty. Of this act Mr. Ellsworth
is justly entitled to claim the chief paternity; and for that reason, if
no other, as one of his eulogists has very properly remarked, he ought
to be spoken of with peculiar reverence by the American bar; for, it
is added, though with a latitude of expression somewhat too wide, the
entire Federal system was made by him,-" the whole edifice, organization, jurisdiction, and process, was built by him as it now stands." t
The Constitution had barely sketched the outline of a Federal Judiciary; it had marked out the ground and defined the fixed boundaries
on which the superstructure was to stand; but the edifice itself, was
left to be reared by the Legislature. It declared that the judicial
power of the United States should be vested in one Supreme Court, and
in such inferior Courts as the Congress may from time to time ordain
and establish,t thus leaving a wide margin for the action of the Legislature. No part of the system had been regarded with more distrust
than this. It was thought to contain an element of power dangerous
to the sovereignty and existence of the several States. The establishment of inferior Courts especially, had been resisted, even in the Federal Convention, as unnecessary,~ it being proposed to establish a Su* Ellsworth's vote is found recorded against a similar proposition in the old
Congress, a proposition which was favored by Hamilton and Wilson.
t Notes to Wharton's State Trials, p. 41.
t Federal Constitution, Art. III. Section 1.
~ See Sketch of Rutledge, ante, p. 171.




238             LIVES OF THE CHIEF-JUSTICES.
preme Court simply as an appellate tribunal from the decisions of the
State Courts, which latter, it was thought, might be appropriately
invested with jurisdiction in offences against the United States, admiralty cases, &c. &c., as under the Confederation.
As an ultra States'-rights man, it might have been supposed that
Ellsworth would have favored these notions in Congress, where they
re-appeared and were urged with great force in the debate on the
judiciary bill. This, however, was not the case. With the adoption
of the Constitution his views seem to have become modified, and from
standing upon the extreme of the States'-rights doctrine, he became
the warm and consistent, but not ultra advocate of a liberal construction of all the provisions of the new system. It was not many years
after the adjournment of the Convention, that he and Madison found
themselves occupying in Congress precisely antagonist positions from
those in which they formerly stood. His support of the Judiciary Act
is one of the earliest and strongest evidences of his thorough adhesion
to the new Federal system.
The early organization of the Courts seems to have been regarded by
Congress as one of the most pressing necessities of the times. The
next day after the opening of the Senate, and before the President's
inaugural speech had been delivered, a committee of the Senate was
appointed " to bring in a bill for organizing the Judiciary of the United States." *  Ellsworth was placed at the head of this committee.
It would, perhaps, be unjust to others, nor is it necessary for his reputation, to claim for him the entire and unaided construction of the
judicial system; for that able lawyer, his future associate on the
bench, Judge Paterson, was a member of the committee, and it is
said that he was assisted also by the valuable aid of his colleague, Mr.
Johnson. To Ellsworth, however, was assigned the chief share of the
labor, and the draft of the bill is undoubtedly from his pen. The assiduous industry he brought to this duty, and the promptitude of its
performance, are evidenced in the fact that within three weeks of the
appointment of the committee, the outlines of the plan were matured.
From the following letter of Ellsworth, to his former colleague, ChiefJustice Law, dated April 30th, 11i89, the reader will perceive that the
system as it was first sketched by the committee, and as it came from
a Senate Journal, April 7th, 1789.




OLIVER ELLSWORTH.                     239
their hands, was the same, substantially, as that which Congress finally
adopted:
"The following," he says, " are outlines of a Judiciary system contemplating before a committee of the Senate.
"That the Supreme Court consist of six Judges, and hold two stated
sessions annually at or near the seat of Government.
"That there be a District Court, with one Judge resident in each
State, with jurisdiction in admiralty cases, smaller offences, and some
other special cases.
"That the United States be divided into three circuits. That a
court be holden twice annually in each State, to consist of two Judges
of the Supreme Court and the District Judge. This Court to receive
appeals in some cases from the District Court, to try high crimes, and
have original jurisdiction in law and equity, in controversies between
foreigners and citizens, and between citizens of different States, and
where the matter in dispute exceeds five hundred dollars; and to grant
appeals to the Supreme Court except as to facts, where the matter in
dispute exceeds two thousand dollars." *
The committee, through Mr. Richard Henry Lee, reported the bill
to the Senate on the 12th of June. Though it encountered in that
body a searching discussion, it had a comparatively easy passage. Of
twenty votes recorded on taking the final question, six only are in the
negative, and among these it is singular enough to find the name of
Mr. Lee, himself.t  But a vigorous and formidable opposition sprang
up in the house, headed by Livermore, of New Hampshire, Jackson, of
Georgia, and Burke, of South Carolina, which, for a time, at least,
threatened to defeat the bill. The debate was characterized by great
ability, and no small degree of warmth. The unaccountable jealousies
entertained of the entire judicial system, were stimulated and excited,
rather than soothed by discussion; and we can read in our day with a
feeling little short of astonishment such exaggerated expressions as
those with which Mr. Livermore closed one of his ablest speeches:
"For my part, I contemplate with horror the effects of the plan. I
think I see a foundation laid for discord, civil war, and all its concom* This and the letter from which the subsequent extract is taken, are published
from the original manuscript by Mr. Wharton, in his Notes to the State Trials.
t Journal of the Senate, July 17th, 1789.




240             LIVES OF THE CHIEF-JUSTICES.
itants. To avert these evils I hope the house will reject the proposed
system." *
During this period of suspense, Ellsworth relaxed no effort to secure
the final passage of the bill. On the fourth of August he writes to
Judge Law: "I consider a proper arrangement of the judiciary, however difficult to establish, among the best securities the government
will have, and question much if any will be found at once more economical, systematic and efficient, than the one under consideration. Its
fate in the House of Representatives, or in the opinion of the public, I
cannot determine. But being, after a long investigation, satisfied in
my own mind of its expediency, I have not hesitated, nor shall I, to
give it the little support in my power."
Fortunately, the majority in Congress entertained similar views.
The bill as it came from the Senate was supported, not by the votes
only, but by the active efforts of such men as Benson, Sedgwick,
Ames, Madison, and Gerry. It passed the House of Representatives
on the 17th September, and soon after, by the signature of the President, became a law. The judicial structure thus raised has stood the
test of time from that day to this; for it remains in its essential features the same that it came from the hands of its founders. The only
substantial and radical change ever made in it was in the last year of
Mr. Adams' administration, when a batch of new officials and tribunals
was created, and the Judges of the Supreme Court, relieved of Circuit
duty, were required simply to sit as an Appellate Court. But the
change was temporary only. During the very next year, under the
auspices of Jefferson's Administration, the law was repealed and the
system restored to its original simplicity.
The scheme of Hamilton for funding the debt of the United States
found in Ellsworth a vigorous and able auxiliary. He was upon the
select committee to whom it was referred, and rendered valuable service in amending and perfecting the plan, until it had assumed the
shape in which it finally passed the Senate. It appears, however,
that he differed from Hamilton in one or two important particulars.
He was of opinion that it was not expedient to attempt to fund the
debt at a higher rate of interest than four per cent., as this would
answer the expectations of the creditors and all the requirements
* Debates of Congress, Vol. I. p. 814.




OLIVER ELLSWORTH.                      241
of substantial justice.  He was also dissatisfied with the Secretary's
proposal of leaving one-third of the debt unfunded for ten years, as
this measure he thought would tend to encourage speculations, and
would leave, after ten years, a great burden upon the country, with
little advantage to the creditors; and these opinions, we are told, were
supported by him " with all that boldness and reason which gave him
a predominant influence in the Senate;"* and also with so much of
energy and success as finally to secure a compromise. It should be added,
that he was warmly in favor of that part of Hamilton's plan, which
proposed the funding of the debts of the States with the foreign debt,
a proposition which had been rejected in the other house; and he
pressed this matter with so much vigor that the Senate finally agreed,
by a small majority, to unite such portion of State debts as should
be assumed, in the general funding bill, and so consolidate the whole
in one system.t
Mr. Ellsworth also seconded, and materially aided in carrying out,
Hamilton's plan for the incorporation of a Bank of the United States.
He was one of the select committee to whom the matter was originally referred, and which reported the bill. The plan, after some discussion, passed the Senate by a large majority.1 But it encountered,
in the House of Representatives, a powerful and determined opposition under the well directed lead of Madison,~ Giles, and Jackson,
who demonstrated both the unconstitutionality and inexpediency of the
institution. After one of the most animated and brilliant debates
which had yet occurred in that body-enlivened by the splendid eloquence of Ames on the one side, and the logical reasoning of Madison
* Letter from Secretary Wolcott, July 20th, 1790. 1 Gibbs' Wol., 49.
t Journal of the Senate, July 16th, 1790.
t The Journal does nor show the exact vote on the passage of the bill. The
motion to limit the term of incorporation to the year 1801 instead of 1811, probably exhibits the strength of the opposition-six to sixteen, Mr. Monroe being
one of the minority. See Journal of January 20th, 1791.
~ Mr. Madison's views of strict construction on the subject of the Bank were
no recent convictions. He had opposed Mr. Morris's Bank of North America, which
he called " the child of necessity," on the ground that it was unauthorized by the
articles of confederation. See Madison's Speech on the Bank, 2 Congressional
Debates, 2011.
16




242              LIVES OF THE CHIEF-JUSTICES.
on the other-the advocates of the bank carried the day by a majority of nineteen votes.
Under the classification of Senators, as required by law, Ellsworth
drew for the shortest term-the period of two years. At the expiration of that time he was again handsomely complimented by his native State, in a re-election to the Senate.  He took his seat at the
opening of the next session, and preserved his connexion with that
body unbroken until his resignation in the Spring of 1796, on his appointment to the Chief-Justiceship.
The passage of the Bank Bill contributed in no inconsiderable
degree, as we are assured on the highest cotemporary authority, to
the complete organization of those distinct and visible parties, which,
in their long and dubious conflict for power, have since shaken the
United States to their centre.*  It left the two most active intellects
of the country, Jefferson and Hamilton, in permanent antagonism in
the cabinet of Washington,j and it placed the name of Ellsworth
in opposition to that of Monroe on the record of the Senate. The
respective positions thus taken were never changed.    Subsequent
events, particularly those growing out of the French Revolution,
served to render the line of division more definite and distinct. Ellsworth attached himself with all the ardor of a thorough conviction,
but without that intemperance of party zeal which some of his
associates exhibited, to the Federal party. With all their measures,
during his continuance in the Senate, his name is prominently connected.  He gave to Washington's administration a sober, but cordial
and energetic support.  He approved and sustained the proclamation of neutrality.  He was one of those who dreaded what he
called the "baleful ascendancy of French influence,"t and was
ardently in favor of cultivating friendly relations with England.
* Marshall's Life of Washington, Vol. II. p. 206.
t It is scarcely necessary to remind the reader that the cabinet of Washington
divided on the question of the constitutionality of the Bank, Hamilton and
Knox being in favor, and Jefferson and Randolph opposed, the President siding
with the former. Precisely the same division occurred on the question of the constitutionality of the bill apportioning the Representatives, with the exception that
General Knox was rather undecided. This time, however, the President acceded
to the views of Jefferson, and vetoed the bill.
I See his letter to Oliver Wolcott, sen,, April 5th, 1794. 1 Gibbs' Wolcott, 134.




OLIVER ELLSWORTH.                      243
He approved the mission of Mr. Jay, and even spoke of it with
some degree of exaltation, as "a mortifying movement to those who
have endeavored by every possible means to prevent a reconciliation
between this country and Great Britain." *   He also warmly approved the treaty itself, and voted for its confirmation, and even censured the delay of the President in ratifying it.  "If the President
decides wroilg," he writes, in regard to this subject, " or does not
decide soon, his good fortune will forsake him."t'  And again, a few
days.after, when it had become known that the President had approved the treaty: " I am glad the President has done at last what I
am unwilling to believe he ever hesitated about, and the delay of
which has not been without hazard and some mischief.    The crisis
admits not of the appearance of indecision, and much less of steering any course but one." f
As the warm and ardent friend of the Jay treaty, of course Ellsworth was one of those who disapproved the nomination of Rutledge
to the vacant Chief-Justiceship of the Supreme Court. This nomination
indeed had struck the leaders of the Federal party with astonishment and
dismay. For a moment their confidence seemed to be shaken, not
in the motives, but in the discretion and judgment of the President.
The violence of language used, and the extreme action recommended,
by some of his indiscreet friends, are certainly lamentable exhibitions
of a blind and over-zealous party spirit.  "A  driviller and a fool
appointed to be Chief-Justice!" exclaims a member of the President's
cabinet. ~  " Faction is to be courted at so great a sacrifice of consistency!" responds another influential Federal politician, and a third
counsels the Senate to stand firm, and correct the President's " error
of judgment," by rejecting the nominee.1 It must be added that
* Letter to Wolcott, April 16th, 1794. 1 Gibbs' Wolcott, 135.
t Letter to Wolcott, jr., August 15th, 1795. 1 Gibbs' Wolcott, 225.: Letter to Wolcott, Jr., August 20th, 1795. 1 Gibbs' Wolcott, 226. In this
letter he congratulates his correspondent on the favorable prospects of the treaty
in New England. As to New Hampshire, he remarks playfully, he infers, "that
brother Langdon's argument, that' tis a damned thing made to plague the
French,' has by repetition lost its power."
~ Wolcott, Jr., letter to Hamilton, July 30th, 1795.
jl Chauncey Goodrich, letter to Wolcott, July 30th, 1795.
IT See preceding sketch of Rutledge, pp. 180, 181-186




244             LIVES OF THE CHIEF-JUSTICES.
Ellsworth was by no means exempt from these warm party feelings,
but he never suffered them to manifest themselves in violent action,
or to drive him from that dignified propriety of language and conduct
which governed his political as well as his private intercourse. "If
the evil is without remedy," he quietly remarks, in a letter to Secretary
Wolcott, about this time, "we must, as in other cases, make the best
of it. Believe not, my dear sir, that I have feelings on this occasion
which are not common to all well disposed friends of the government."*
Rutledge rejected, the confidence of the Federalists in the President returned; the entente cordiale was restored; it had become a
matter of entire certainty on their part that the office would now be
properly filled; no Jacobin, or opponent of the Jay treaty, no Democrat, or other disorderly or improper person, would be selected to fill
the important station of Chief-Justice of the United States.  At this
time, it is to be recollected, the two great parties into which the country was divided had assumed distinct form and shape, and had entered
fully armed into the political arena. Washington could be said strictly
to belong to neither. He endeavored to hold, with a firm and steady
hand, the balance equally poised between both; yet the close observer might even then see that the Federal scale slightly predominated.
Like a parent, striving to govern, with wisdom and strict impartiality,
two rebellious sons, he could not entirely conceal his partiality for the
elder born. He selected, as President Adams rather strongly expresses
it, "a multitude of Democrats and Jacobins " for office; but it was plain
to be seen, that his most trusted officials were drawn from the opposite ranks. He conferred upon Monroe and Jay, almost at the
same time, high diplomatic trusts, and though the former enjoyed his
entire respect and esteem, the latter carried with him also his unreserved confidence. His judgment appreciated, as they deserved, the
great abilities and valuable services of Jefferson in the cabinet, but it
was not difficult to see that with Hamilton were lodged the affections
of his heart.'The rejection of Rutledge, therefore, produced no permanent estrangement or misunderstanding between the President and his
Federal friends, particularly as he soon after sent into the Senate the
name of Mr. Cushing, the senior Judge in commission then on the
* 2 Gibbs' Wolcott, p. 226.




OLIVER ELLSWORTH.                          245
bench, for the office of Chief-Justice. The nomination was at once
ratified with entire unanimity.   But that excellent and exemplary
gentleman declined to accept the presidency of the court, preferring
to retain the less ambitious and less prominent post of an associate.*
* The first intimation Judge Gushing received of his appointment was at a diplomatic dinner given by the President. In seating the guests, Washington, with
the stately etiquette of that day, bowed to Judge C., and pointing to a vacant
place near him, said, " The Chief-Justice of the United States will please take the
seat on my right."  The next day he received his commission. This anecdote, I
am informned by the friend who communicates it, has been preserved on the relation of Judge Gushing himself.
The fact that Judge C. actually presided in the Supreme Court, and was also
tendered the commission of Chief-Justice, would have authorized me perhaps to
assign him a more prominent place, and to introduce a more extended notice of
him in this work. For the present, however, I must confine myself to the limits
of the following brief, but interesting sketch, which has been kindly furnished me
by Charles C. Paine, Esq., of Boston, a family connexion of Judge Cushing, and
who has come into possession of his papers.
WILLIAM CUSHIrNG was born in Scituate, Massachusetts, March 1, 1732. His
family was of ancient and respectable English descent, and came over in 1636;
this branch of it soon afterwards settled in Scituate on the estate on which he
was born, and which he afterwards inherited. His father and grandfather were
Judges of the Superior Court, and his great-grandfather an assistant of the
colony of Plymouth, a Judge, and one of the commissioners for uniting the two
colonies of Plymouth and Massachusetts.
He graduated at Harvard College in 1751, studied law with Jeremy Gridley,
Attorney-General; commenced practice in Scituate, in 1760; was appointed Judge
of Probate for Lincoln county, (now in Maine,) and removed to Pownalborough, on
the Kennebec river and practiced there with great success. His brothers, Charles
and Roland, also educated at Harvard College and to the bar, both practised in
Maine.
In 1772, upon the resignation by his father of the office of Judge of the Superior
Court, which he had held for over 28 years, he was appointed to the vacancy,
and thereupon returned to Scituate, where he resided for the rest of his life.
From this time to the Revolution, in 1775, such were the dignity and amenity of
his character that he enjoyed the respect and friendship of the principal men of
both parties, his associates on the bench, the Governor, and others of the royalists,
being friends of his father, while his relative, Thomas Gushing, the Speaker of the
House, Robert Treat Paine, and others of the leading patriots, were his own
friends. He was the only member of the bench who adhered to the American
side, and upon the re-organization of the Supreme Court in 1775 was made ChiefJustice, which post he held till 1789, during the independent sovereignty of the




246               LIVES OF THE CHIEF-JUSTICES.
It was now exceedingly doubtful upon whom the choice of the President would fall.  Wilson was the oldest Judge in commission after
Judge Cushing, and it might have been supposed was next in the line of
State. In 1780 he was one of the committee for revising the laws of the State. In
1783, the great question, whether slavery was abolished in the State by the language of the Bill of Rights declaring that all men are born free and equal, came
before the court on an indictment of the master for an assault on his slave; in his
charge to the jury he held that it was so-and thus slavery in the State came to
an end.
The interval from 1782 to 1788 was a period of constant difficulty and danger
to the Judges. The people, unable to meet their debts and taxation, assembled in
armed mobs around the court houses and endeavored to prevent the sittings of the
courts, until, finally, Shay's rebellion broke out. The judges, on approaching the
court houses, not unfrequently were obliged to pass through these infuriated
masses, and the unflinching firmness with which they never failed to perform their
duties was witnessed with admiration.
In 1785 he was requested to be a candidate for Governor, as he was again in
1794, but on both occasions he declined. In 1788 he was Vice-President of the
Convention for ratifying the Constitution of the United States, presided most of
the time, and gave his support to the adoption of it. Upon the organization of
the Supreme Bench of the United States, in 1789, he was appointed judge of it,
next to the Chief-Justice.
After Jay's departure for England in 1794, he presided in the Court, and in
1796, upon Jay's resignation, he was nominated by Washington as Chief-Justice,
and at a time of great party exasperation was unanimously confirmed by the
Senate. This appointment was made without his knowledge, and was an entire
surprise to him.
After holding the commission for about a week he returned it, though Washing
ton solicited him to keep it, and was never willing to appoint any other over him.
He continued on the bench till his death.
He was of good height, graceful, and of great personal dignity; his purity and
simplicity of character and urbanity of manners fascinated every one, and at the
same time he had unbending firmness and an integrity which inspired universal
confidence. He was always cheerful, and fond of social enjoyments. He possessed a remarkably strong and clear mind; was a man of great abilities and
learning, and profoundly read in the law. As a judge he commanded the entire
respect and confidence of the Massachusetts bar, while at the head of the State
bench, and of the bar generally in the federal court. He was a great reader of
works of history and literature, and a liberal and fervent Christian.
In 1774 he married Miss Hannah Phillips, of Middletown, Conn., a lady much
younger than himself, and of great accomplishments, who was his constant coipanion in all his journeyings, and survived him many years.




OLIVER ELLSWORTlI.                     247
succession.  But public rumor seemed rather to point to Judge Paterson, though no one could venture, with certainty, to predict the final
action of the President.  "Mr. Paterson, of New Jersey, is thought
of," writes Mr. Tracy to the senior Wolcott,* " but our President keeps
his own counsel tolerably well till he acts officially."
The name of Ellsworth does not seem to have been mentioned in
connection with the office, and it was, doubtless, with as much surprise to himself as to any other person, that he received the information that the choice of the President had fallen on him. His nomination was confirmed at once by the Senate with gratifying unanimity.
It had not been sought by him, and it was accepted with reluctance.
This is evident from his letter to Governor Wolcott, communicating
the intelligence, and his resignation of the office of Senator.  "It is,
Sir, my duty to acquaint you," he says, " that I have, with some
hesitation, accepted an appointment in the judiciary of the United
States, which, of course, vacates my seat in the Senate. This step, I
hope, will not be regarded as disrespectful to a State which I have so
long had the honor to serve, and whose interests must forever remain
precious to my heart."t The step was by no means regarded as disrespectful; on the contrary, the appointment was considered by the
friends of Ellsworth as a deserved compliment to his abilities and integrity, and as a matter of just pride to the State.  " Mr. Ellsworth's
appointment," says Governor Wolcott to Trumbull, "will be satisfactory to all who are willing to be pleased. If our country shall be
saved from anarchy and confusion, it must be by men of his character."$
Chief-Justice Ellsworth's commission was dated on the 4th of March,
His brother, Roland, died young and unmarried. His brother Gen. Charles
Cushing, removed to Boston, and married a sister of Governor Sumner, and a
daughter married Charles Paine, son of Robert Treat Paine. In these families
Judge and Mrs. Cushing enjoyed their chief society and intercourse when at home.
Judge Cushing never had issue. He died on the 13th of September, 1810, in the
79th year of his age.
* 1 Gibbs' Wolcott, 299. This was not the only time Mr. Paterson was
"thought of." In the appointment of a successor to Ellsworth it was supposed
he would be nominated, and the President was censured for passing by "old
friends," to reward " dear ones." See subsequent sketch of C. J. Marshall.
t 1 Gibbs' Wolcott, 306.
+ 1 Gibbs' Wolcott, 322.




248              LIVES OF THE CHIEF-JUSTICES.
1796. He took his seat on the bench the 8th of the same month, and
during the then February session of the court. The morning on
which he was sworn into office, the argument of the important case of
Hylton vs. the United States* was in progress, one of the earliest cases
involving a question of constitutional law ever discussed in the
Supreme Court. The point upon which the discussion turned was the
constitutionality of the law of Congress of 1794, laying duties upon
carriages for the conveyance of persons.  It'was maintained that this
was a direct tax, and could not be laid except in proportion to the
census, or enumeration of inhabitants of the United States.  Alexander Hamilton maintained the constitutionality of the act with that
power and originality and vigor of argument which he never failed to
display on all great occasions;t and he succeeded by the unanimous
vote of all the judges who participated in the decision, the Chief-Justice delivering no opinion, as he had not heard the whole of the
argument. It is worthy of remark that the sole question submitted to
the Court was, is the law of Congress unconstitutional and void?  So
Judge Chase himself considered it, although the Supreme Court had
not yet decided that it possessed the power to declare an act of
Congress void, and the same judge, in a subsequent case, four years
after, doubted where the power resided to declare such an act void.:
The case of Ware vs. Hylton et. al.~ was argued and determined at
the same session of the court-a case deciding the important principle
that a statute passed during the revolution, by the Virginia Legislature,
confiscating the debts of British subjects, was annulled by the treaty
of peace, so as to enable the foreign creditor to recover his debt in
* 3 Dallas Reports, 171.
t Hamilton was in truth at the bar, as Jefferson had declared him to be elsewhere, "a Colossus;" nor was his celebrated speech in the case of the People vs.
Croswell, in the New York Supreme Court in 1804-which a competent critic has
declared to have been " greater than any other man who ever lived in the State,
was intellectually competent enough to make"-by any means a solitary example
of that brilliant genius, and those inexhaustible intellectual resources with which
he was endowed. His occasional efforts in the federal tribunals might compare
favorably with it in all respects; and one of these was his argument in this very
case of Hylton vs. the United States."
t Cooper vs. Telfair, 4 Dallas Reports, 14, and see note to case of Marbury vs.
Madison, in subsequent sketch of Chief-Justice Marshall.
~ 3 Dallas' Reports, 199.




OLIVER ELLSWORTH.                     249
the federal courts, notwithstanding such debt had been paid into the
loan office of Virginia, under authority of the State law. It was
upon the argument of this case that Ellsworth's illustrious successor
on the bench-then in the prime of vigorous manhood, and the full
strength of his splendid intellectual faculties-appeared for the first
time at the bar of that tribunal over which he subsequently, for so
many years, presided, and in a single argument, whose masterly
analysis, and powerful and comprehensive logic excited the admiration
of the bench as well as the bar, achieved a fame as a lawyer that was
exceeded only by that which he afterwards won as a judge.*
Many of the cases which engaged the attention of the Supreme
Court during the period of Judge Ellsworth's service were Admiralty
cases, involving not only nice and sometimes intricate questions of
jurisdiction, but some of them also bringing up for discussion the
gravest principles of international and prize law. It will be recollected that nearly twenty years before, Ellsworth, as a member of the
Committee of Appeals of the Continental Congress, had participated
in the judgments of the first judicial tribunal ever organized in America with appellate jurisdiction in Admiralty cases. The functions of
that committee were now exercised, under a better system, and a more
complete and thorough organization, by the Supreme Court; and
though a somewhat different class of cases now arose, growing out of
the more extended commerce of the United States, and our peculiar
attitude with regard to the belligerent nations of Europe, and particularly with France, yet the general principles applicable to the
subject, were not entirely new to the mind of Ellsworth.
One of the earliest of these cases is that of La Vengeance,t decided
the next term after the Chief-Justice took his seat, and which has always since been regarded as a leading case upon the important question of the nature and extent of the Admiralty jurisdiction conferred
by the Constitution and judiciary act on the federal tribunals. In the
case of Glass vs. The Sloop Betsey, decided in Chief-Justice Jay's
time I the jurisdiction of the Admiralty in cases of prize and captures
* See a more full notice of this interesting case in the subsequent sketch of
Chief-Justice Marshall.
t United States vs. La Vengeance. 3 Dallas' Reports, 297.. Ante, page 61.




250              LIVES OF THE CHIEF-JUSTICES.
on the high seas, was established.*  The case of La Vengeance now
established a like jurisdiction in cases of seizure within a port, and
forfeiture for a violation of an act of Congress, the Court being unanimously of opinion that it was a civil cause, and therefore coming within the Admiralty and maritime jurisdiction conferred by the judiciary
act. But another question of novelty, as well as of great practical
importance, was raised, and one which has been frequently discussed
since that time-namely, whether the Admiralty jurisdiction can extend to causes arising on navigable waters within the precincts of a
county.  The La Vengeance had been libelled in the District Court of
New York for exporting arms from     Sandy Hook, in the State of
New Jersey, to a foreign country.  The Attorney-General Lee, in a
very ingenious and able argument, maintained that to make it a cause
of Admiralty, cognizable by the federal tribunals, it must arise wholly
upon the sea, and not in a bay, harbor, or water within the precincts
of a county of a State. But the Chief-Justice and his associates ruled
the contrary, and thus established the precedent which has never since
been shaken, that the Admiralty and maritime jurisdiction of the Federal Courts extends as far as the ebb and flow of the tide.t
At the same term of the court the Chief-Justice rendered judgment
in another interesting case of Admiralty, arising under the construction of our treaty with France, which allowed the privateers of that
country to send into our ports their prizes captured of the enemy on
the high seas.  A French privateer had captured a British merchantman, the Phcebe Ann, and sent her into the port of Charleston. The
British consul filed a libel, claiming restitution of the prize on the
* The jurisdiction in cases of prize is at least as ample, says Judge Story, as
the Admiralty in England. Brown vs. United States, 8 Cranch, 110.
t The principle was fully recognized and sanctioned in the case of United States
vs. The Schooner Betsey (4 Cranch, 443), by Chief-Justice Marshall; and has been
carried still farther since his time, as I shall have occasion to show in the subsequent sketch of Chief-Justice Taney.
It should be added that the principle has been disapproved by jurists of the
highest reputation. JUDGE WOODBURY, in his dissenting opinion in Waring vs.
Clark, 5 Howard, 448, considers the decision in this case as " the parent of mistaken references;" and even Chancellor Kent remarks, "it may be doubted whether the case of La Vengeance, on which all the subsequent decisions of the
Supreme Court have rested, was sufficiently considered." 1 Kent. Com. 376.




OLIVER ELLSWORTII.                       251
ground       that the French privateer had been illegally fitted out in the
United States. The evidence was, that the privateer had entered the
port of Charleston for repairs, as she lawfully might do under the
treaty; but there had been no material augmentation of her force.
The Court, therefore, refused to decree restitution, leaving undecided,
however, the important question, whether if there had been a material
augmentation, it would have been an illegal fitting out within the
meaning of the law. One thing, however, was clearly established by
the decision-namely,        that the Judges of the Federal Courts, notwithstanding any political prejudices they might have been supposed
to entertain against the " regicide republic," were determined to carry
out in good faith the provisions of existing treaties with France.  The
language of Judge Ellsworth, in delivering the opinion of the Court,
is alike dignified and honorable.  "Suggestions of policy and convenience," he says, " cannot be considered in the judicial determination
of a question of right.  The treaty with France, whatever that is,
must have its effect." *
Various other cases of Admiralty and prize law, involving mainly
questions as to the nature and extent of the jurisdiction of the
Federal Courts, were brought before Chief-Justice Ellsworth both at
the Circuit and in the Supreme Court; but as these are of interest to
the professional reader alone, who has an opportunity of examining
the reports for himself, and as I have already by the foregoing references indicated generally the nature of the questions discussed befo e
the Chief-Justice arising on this branch of the law, I dismiss the subject without further remark.t
* Moodie vs. Ship Phoebe Ann. 3 Dallas' Reports, 319.
t One of the most novel and curious of these cases is that of McDonough vs.
Delancey, 3 Dallas, 188, at the first term Judge Ellsworth came to the Bench. A
British merchant ship had been captured by a French squadron on the high seas,
and a prize-master and crew put on board. Soon after she was left by the prizemaster and crew, after several ineffectual attempts to set her on fire. An American vessel fell in with her, and brought her into the port of Boston. The owners
of the American vessel, the British consul, and the French consul, respectively set
up their claims to the captured vessel and cargo. The District Court adjudged
one-third part of the vessel and cargo as salvage to the owners and crew of the
American ship, and the residue to remain in court for the British owners. The
Circuit Court on appeal reversed the decree as to the residue, awarding it to th,.




252              LIVES OF THE CIIEF-JUSTICES.
It is to be observed, however, that these jurisdictional questions so
much mooted in Ellsworth's time, were by no means confined to cases
of Admiralty and prize law. They grew out of every branch of jurisprudence, and were presented in almost every form, being the necessary consequence of that new, and in some respects untried, system,
which was introduced by the passage of the act organizing the courts.
Under that system of course every case of doubtful jurisdiction was to
be settled by judicial construction.
Thus, in Wiscart et al. vs. Dauchy,* decided at the same term with the
case of La Vengeance, the Chief-Justice laid down a principle of vast
importance to the profession, so much so, indeed, as to lead in a short
time to a change in the judiciary act. It was an action on the Equity
side of the Circuit Court; and the record, containing the statement
of facts required by the law, had been brought by Wr'it of Error to
the Supreme Court. The main question was, whether this statement
of facts was conclusive;-that is, whether the Supreme Court had the
right to look into the testimony for the purpose of readjudicating the
facts, decided in the Court below. It was a question, as Judge Wilson, who delivered a dissenting opinion, very truly remarked, which
would materially affect the jurisdiction of all the Courts in the United
States; and as it extended not only to Equity, but to Admiralty and
maritime cases, it became of the highest importance, inasmuch as it
might affect the rights and pretensions of foreign nations, as well as
our own citizens.
Judge Wilson thought that the Supreme Court had jurisdiction
in all these cases to review the fact as well as the law. But the
Chief-Justice and the majority of the Court did not so regard the
subject. Ellsworth's opinion, which, it seems, as was usually the case
with him, was oral, contains a brief but clear and pointed exposition of his views of the law, and must be admitted to be strictly
legal, as well as logical. An appeal, he remarks, is a process of civil
law origin, and removes a cause entirely, subjecting the fact as well as
the law to a review and retrial.  But a writ of error is a process of
French Republic.; and the Supreme Court affirmed the decision of the Circuit
Court. The question of the jurisdiction of the District Court was raised on the
appeal, but decided unanimously in favor of the jurisdiction.
* 3 Dallas' Reports, 321.




OLIVER ELLSWORTH.                      253
common law origin, and removes nothing for re-examination but the
law. The judiciary act, he thinks, preserves this obvious distinction,
but it had provided no other mode than a writ of error for removing
a cause to the Supreme Court. The conclusion, therefore, follows,
that no matter whether the evidence is returned or not, the Court is
bound by the statement of fact. " The law may, indeed, be improper
and inconvenient," he remarks; " but it is of more importance for a
judicial determination to ascertain what the law is, than to speculate
upon what it ought to be."
At the following term of the Court the same question was presented in a slightly different form. It was an Admiralty case,* and the
record had been sent up with all the evidence, but without the statement of fact required by the law, the District Judge having died soon
after decree. Mr. Tilghman, for plaintiff in error, thereupon endeavored to distinguish the case from Wiscart vs. Dauchy; and insisted upon going into the evidence, notwithstanding the abrupt and
sarcastic remark of Judge Chase from the bench-" Even if the Court
were to permit it, you would find little encouragement to enter into
the merits; the evidence is too plainly against you!" But the ChiefJustice and his associates held the principle to be the same as in
Wiscart vs. Dauchy, and adhered to their former decision, Mr. Justice
Paterson remarking, " If there is no statement of facts, the consequence seems naturally to follow, that there can be no error." t
A question of no less professional interest relative to the appellate
jurisdiction of the Supreme Court was decided by the well-known case
of Wilson vs. Daniel, at the August term, 1198.t    The case had
been argued at the preceding term, in the absence of the Chief-Justice;
the main question presented by the record being whether the "matter
* Jennings vs. The Brig Perseverance. 3 Dallas, 336.
t In the subsequent case of Blain vs. Ship Carter, 4 Dallas, 22, it was again held
that whatever might be the nature of the suit, there was no mode of removing
causes to the Supreme Court, except by writ of error. The inconvenience of the
rule thus established, was felt to be so great, that Congress, by the act of March
3rd, 1803, provided for an appeal instead of a writ of error, in equity and Admiralty cases, thus subjecting the evidence, as well as the law, to review in the
Supreme Court.
t 3 Dallas' Reports, 401.




254               LIVES OF THE CHIEF-JUSTICES.
in dispute" was of sufficient value to give the Court jurisdiction.*
The judgment was in an action of debt for the penalty of ~60,000;
but the real and operative judgment of the Circuit Court was only for
the sum due, amounting to $1800. Three of the Judges, CHASE,
PATERSON, and CUSHING, concurred in considering the judgment as a
judgment at common law for the full penalty; and therefore that
the Court had jurisdiction.   Judge WILSON dissented; and IREDELL
declined taking a part in the decision.   The argument was now renewed on this point before the Chief-Justice, by Tilghman on the one
side, and by Lee and Ingersoll on the other.  At the close of the discussion Ellsworth delivered the opinion of the Court, concurring with
the majority of his brethren, that the Court had jurisdiction. The
actual judgment, or verdict, he thought was not to be regarded as the
rule for ascertaining the matter in dispute.  But that to determine it,
recurrence must be had to the foundation of the original controversyto the matter in dispute (in this case the penalty of the bond) when
the action was instituted.t
This was the last term  of the service of Mr. JUSTICE WILSON I in
* By the judiciary act, there could be no removal of a civil cause from the Circuit Court to the Supreme Court unless the matter in dispute exceeds the value of
$2000.
t Judge Iredell now delivered an opinion, agreeing with the positions taken by
Judge Wilson on the previous argument. This dissenting opinion proved to be
the correct construction of the law, as subsequently laid down by the Supreme
Court in several cases. In Gordon vs. Ogden, 3 Peters, 33, Chief-Justice Marshall
says, that notwithstanding Wilson vs. Daniels was decided by a divided court, he
would have followed it, had not a contrary practice prevailed.
t JAMES WIsoN was a native of Scotland. He was born about the year 1742,
and at the age of twenty-one emigrated to America, and settled in Philadelphia.
After a brief period passed as a teacher in the Philadelphia College, a position for
which his eminent scholarship and learning admirably qualified him, he commenced the study of the law, and two years afterwards entered upon the practice
of his profession at Reading, Pennsylvania. Removing from thence to Carlisle,
and from Carlisle to Annapolis, he finally, about the year 1773, settled at Philadelphia, where he fixed his residence for life. Mr. Wilson early engaged with
ardor in the revolutionary struggle; was a member of Congress during a part
of the revolutionary war, and one of the signers of the Declaration of Independence. IIe was also, as is well known, a prominent and influential member of
the Convention which framed the Federal Convention, in which body, as all his
sleclhes and votes show, he was numbered among the most extreme of the advo



OLIVER ELLSWORTH.                         255
the Supreme Court.    He died during the year, at the house of his
friend and colleague, Judge Iredell, at Edenton, North Carolina,
while on a judicial circuit in that State. At the opening of the
February term   of the Court, 1 99, the commission of his successor,
BuSHROD WASHINGTON,* was read, who was then qualified, and took
cates of a strong consolidated government. On the organization of the Federal
judiciary he was appointed to a seat on the Bench of the Supreme Court, which
he continued to occupy until his death, in 1798. A law professorship having
been established in the College of Philadelphia, Mr. Wilson, soon after his appointment as Judge, was chosen first Professor; and two years after, when the college
was united with the University of Pennsylvania, and a professorship of a similar
kind was established, he was appointed to fill it; thus, like one of the most eminent
of his successors, he sat, during his judgeship, alternately in the Professor's chair
and on the bench.
In this position the comprehensive and almost inexhaustible erudition of Judge
Wilson fitted him to shine with no ordinary degree of lustre. It was a position,
perhaps, better adapted to his attainments and capacity than his place in the
Federal judiciary. And yet Judge Wilson exhibited no ordinary ability as a jurist
and lawyer. While in active practice his reputation, it is said, was unsurpassed
by any of the able members of the Philadelphia bar, at the head of which he confessedly stood. As a judge he is also entitled to high respect, not more on account of
his great learning, than of his patient industry, his uprightness of character, and
his dignified bearing on the bench. Some of his judicial opinions display a needless prolixity of learning, and bear upon them evident marks of the lecture-room.
This may be said as well of his charges to juries, especially in criminal cases, as
of his judgments pronounced from the bench. Among the former it is only necessary to instance his charge to the grand jury which indicted, and to the petit jury
which acquitted Henfield, on whose trial Judge Wilson presided.
* BUSHROD WASHINGTON was the son of John A. Washington, of Westmoreland
County, Virginia, the next eldest brother of General Washington. He received
part of his classical education under a private tutor at the house of Richard
Henry Lee, and his studies were afterwards continued and completed at William
and Mary College, in Virginia. Here commenced his acquaintance with Marshall,
an acquaintance which afterwards ripened into friendship and intimacy, and continued unbroken till the period of his death. At the time of the invasion of Virginia by Cornwallis, young Washington, just arrived at the age of manhood, joined
a volunteer troop of cavalry, and served in the army under the command of
Lafayette. The following winter he came to Philadelphia, and under the auspices
and care of his uncle, General Washington, commenced the study of the law in
the office of Judge Wilson, whom he afterwards succeeded on the bench of the
Supreme Court of the United States. His studies completed, he returned to Virginia, where he practiced his profession with reputation and success. In 1787 he




256               LIVES OF THE CHIEF-JUSTICES.
his seat. It may be added that Judge Iredell died the following
year, and was succeeded by ALFRED MOORE, of North Carolina, and
was chosen a member of the Virginia House of Delegates; and the following year
served in the Convention which ratified the Constitution of the United States.
During the period of his practice at the bar he reported the decisions of the Supreme Court of Virginia, a work in two volumes, which furnishes abundant indications of the talents, industry, and success of Judge Washington, as an advocate
ot the bar. He served as an Associate-Justice of the United States Supreme Court
with unsullied reputation, and a constantly increasing fame, from his appointment
in 1798 to the time of his death, a period of more than thirty years. He died on
the 26th of November, 1829, in the sixty-eighth year of his age; his remains were
deposited at Mount Vernon, in the same vault which contained the ashes of Gen.
Washington, and his monument is now to be seen on the banks of the Potomac,
by the side of the new tomb, where rest the ashes of the father of his country.
Judge Washington, it is well known, was the favorite nephew of General Washington, and the devisee of Mount Vernon; he left no issue, however, to inherit
that estate after him. He was also one of the executors of General Washington,
and came into possession of all his uncle's public and private papers, which he
subsequently passed over into the hands of his friend, Chief-Justice Marshall, for
the purpose of.being used by him in his " Life of Washington." Judge Story,
who sat with him during so many years on the bench, and who fully appreciated
his worth and virtues, has left a brief but discriminating eulogy upon the character
of Judge Washington, from which I select the following passages:
"His mind was solid rather than brilliant; sagacious and searching rather than
quick or eager; slow, but not torpid; steady, but not unyielding; comprehensive,
but at the same time cautious; patient in inquiry, forcible in conception, clear in reasoning. He was, by original temperament, mild, conciliating, and candid; and yet
was remarkable for an uncompromising firmness. Of him it may be truly said that
the fear of man never fell upon him; it never entered into his thoughts, much less
was it seen in his actions. In him the love of justice was the ruling passion-it was
the master-spring of all his conduct. He made it a matter of conscience to discharge
every duty with scrupulous fidelity and scrupulous zeal. It mattered not whether
the duty were small or great, witnessed by the world or performed in private; everywhere the same diligence, watchfulness, and pervading sense of justice were seen.
There was about him a tenderness of giving offence, and yet a fearlessness of consequences in his official character, which it is difficult to portray. It was a rare
combination which added much to the dignity of the bench, and made justice itself, even when most severe, soften into the moderation of mercy. It gained confidence when it seemed least to seek it. It repressed arrogance by overawing or
confounding it.     *      *      *      *      *      *      He was a
learned judge. Not in that every-day learning which may be gathered up by a
hasty reading of books and cases; but that which is the result of long-continued




OLIVER ELLSWORTH.                          257
these were the only changes made in the constitution of the Court
during the period of Ellsworth's service.    JUDGE CHASE came upon
the bench at the same term      the Chief-Justice took his seat; and
JUDGES CUSHING and PATERSON * remained members of the Court until after Ellsworth's resignation.
laborious services, and comprehensive studies. He read to learn, not to quote
to digest and master, and not merely to display. He was not easily satisfied. If
he was not as profound as some, he was more exact than most men. But the
value of his learning was, that it was the keystone of all his judgments. He indulged not the rash desire to fashion the law to his own views, but to follow out its
precepts with a sincere good faith and simplicity. Hence he possessed the happy
faculty of yielding just and proper weight to authority; neither on the one hand
surrendering himself to the dictates of other judges, nor on the other hand overruling settled doctrines upon his own private notions of policy or justice."'
* WILLTAM PATERSON was one of the ablest jurists whom New Jersey has produced. He came later into public life than some of his associates, but he brought
with him to the bench an extensive and valuable experience at the bar as well as
in various departments of public life. He was first elected to Congress in 1780,
and afterwards in 1786, having previously served in the provincial Congress of
New Jersey. IIe was also appointed and served in the Convention which adopted
the Federal Constitution. In this body Mr. Paterson, like Ellsworth, advocated a
strictly federal, in opposition to a strong consolidated government. As a counter
plan to those proposed by Randolph and Pinckney, he presented one of his own,
which is known as the " New Jersey plan," being in the main a mere revision of
the articles of Confederation, though proposing to establish a supreme Executive,
composed of several persons, and also a Federal judiciary. This plan, after some
discussion, was rejected, it receiving the support only of the delegates from New
Jersey, Connecticut, Delaware, and in part of Maryland. On the organization of
the government Mr. Paterson was appointed one of the senators in Congress from
New Jersey. In that body he was placed with Ellsworth upon the committee
which drafted the bill to organize the Federal judiciary. He served through two.
sessions of this Congress, when, being elected Governor of New Jersey, he resigned, and Mr. Philemon Dickinson was chosen to succeed him. On the death of
Judge Johnson, of Maryland, Mr. Paterson was chosen to the vacant seat on the
bench of the Supreme Court, and was commissioned, March 9th, 1793.  He
retained this place until his decease in 180G, and was succeeded by Brockholst
Livingston, of New York. Judge Paterson was unquestionably one of the ablest
jurists who sat upon the bench of the old Supreme Court. In most of those qualities which constitute a successful judge he was inferior to none of his colleagues.
and perhaps was not equalled by any, save his brethren, Iredell and Chase. Iis
intellect, though less accurate and logical than that of the former, and less bold
and self-reliant than that of the latter, was original, comprehensive, discriminating,
1 A




25 8              LIVES OF THE CHIEF-JUSTICES.
Though, as before remarked, many of the cases brought into the
Supreme Court in Ellsworth's time involved questions of jurisdiction,
or other questions growing out of the peculiar structure of the federal
system, yet occasionally matters were brought there for adjudication,
as they frequently are now, the argument of which turned simply and
purely upon points of common law or equity jurisprudence.    The jurisdiction of the Court in some cases is determined by the character
of the parties, as well as the subject matter of the suit.    Then, as
now, the citizen of one State could sue the citizen of another State in
the Federal Courts, in any recognized form of action, thus laying open
the whole field of legal and equitable jurisprudence.    In short, the
Judges of the Court were not strangers to the discussion of the most
abstruse, and sometimes the most technical, questions, drawn from the
musty recesses of the common law.     Thus, in Brown vs. Barry, at the
August term, 1797,* the controversy hinged upon the merest refinements of s3ccial pleadiing-presenting a point too minute and unsubstantial for any one but the practiced lawyer to appreciate.  It was a
motion to arrest the judgment after verdict; and the professional
reader will readily perceive the delicate refinements of learning, and
the technical precision of argument called forth in the discussion of
propositions like these  That the declaration demands foreign money
without stating the value thereof in the current money of the United
States; that it is in the debet, as well as in the detinet; that it does
not charge that the bill of exchange therein mentioned was protested
for non-acceptance; that it does not charge that the said bill was
presented to the persons on whom     it was drawn for acceptance, or
and strong. Some of his judicial opinions are among the best specimens left us of
the old Supreme Court. Judge Paterson presided with firmness and dignity, but
with moderation, in several of those exciting criminal trials i\li (Lh took place
during Adams' and the latter part of Washington's administrations. Among these
were the trials of the Western Insurgents, the trial of Guinet, at Philadelphia, for
illegal privateering; and the trial of Haswell, in the Vermont District, for a seditious libel.
The rigid discipline preserved by Judge Paterson in Court on some of these
trials has been complained of. On the trial of Haswell, it is said, he even prevented the printer of the Vergennes Gazette from taking notes. His conduct,
however, was generally marked by strict impartiality and a scrupulous regard for
the rights and privileges of the accused.
* 3 Dallas' Reports, 365




OLIVER ELLSWORTH.                        259
that they were ever required to accept it, &c. Judge Ellsworth
brought to the examination of questions like these, the plain, and somewhat homely, but clear, and strong common sense, which characterized his practical mind.  No one who reads his decision, in this day
of legal quibbles, would be apt to call him a great lawyer-that is to
say, one skilled in the refinements of legal metaphysics, and in that
precise, but narrow and technical attorney-logic, with which the old
books are filled.  He, indeed, scarcely enters into the discussion at
all.  Hle adduces no authority, and cites no adjudged case; and yet
there is no lack either of shrewdness or masculine common sense in
the manner in which he takes up, and considers, and over-rules, each objection, seriatim.  The opinion which would have occupied at least
fifty pages of a modern report, is condensed within two pages of the
published case; and yet it is one of the longest ever delivered by the
Chief-Justice while presiding in the Supreme Court.
The case of Clark vs. Russell, at the February term, 1799,* presented the subject of a similar examination.    From  the report of this
case, and the number of authorities cited by counsel, it would appear
that the argument was conducted with a most exuberant profusion of
learning, and an extraordinary display of ability; nor could it well
have been otherwise, when Ingersoll was the leading counsel on one
side, and Dexter, of Massachusetts,t headed the array on the other,
* 3 Dallas' Reports, 415.
t SAMUEL DEXTER is justly regarded as one of the brightest ornaments of
the Massachusetts bar. His professional career was one of great success and
brilliancy, and for a time he was regarded at the bar of the United States
Supreme Court as the rival, and, perhaps, the sole rival, of Pinkney. The
friends and admirers of each claimed the superiority over the other, and perhaps
it was difficult to say to whom the forensic crown legitimately belonged. Judge
Story, in one of his letters, contrasts the respective merits and style of these great
advocates, in a manner certainly not unfavorable to Mr. Dexter, which must be
esteemed the very highest compliment, whenl it is recollected that Story's admiration for Pinkney was unbounded. Subsequently, in the eulogy delivered on Mr.
Dexter's death, as part of a charge to a grand jury, Story speaks of him in terms
of almost exaggerated praise: " r. Dexter was a man of such rare endowments,
that in whatever age or nation he had lived, he would have been in the first rank
of professional eminence. It is unfortunate that he has left no written record of
ulhli;- f. The only monument of his fame rests in the frail recollections of memory,
andl can reach future ages only through the indistinctness of tradition or history.




260               LIVES OF THE CHIEF-JUSTICES.
The opinion of the Court, pronounced by the Chief-Justice, is even
more brief and sententious than in the former case. The first question discussed, he thinks, had been already decided in Brown vs. Barry,
and is summarily dismissed. On the second question, namely, wheHis glowing thoughts, his brilliant periods, and his profound reasonings have
perished forever." Judge Story adds that he rejoiced " to have lived in the same
age with him, and to have been permitted to hear his eloquence, and to be instructed by his wisdom."
Dexter was born in the year 1761, and educated at Harvard University in 1781.
Admitted to the bar, he rose rapidly into professional notice, and soon passed into the
State Legislature, and from thence into Congress. He was a senator in Congress
when Mr. Adams appointed him Secretary of War, in place of Mr. MHlenry. On
the accession of Mr. Jefferson he retired from the cabinet, and generally from political employments; and thenceforth devoted himself mainly to the labors of his
profession, up to the time of his death, which happened in May, 1816. For
several years previous to his death, Mr. Dexter was constant in his attendance upon the sessions of the Supreme Court at Washington, where, engaged
in many of the most important causes, he held " his career in the foremost rank
of advocates."
The brilliancy of his forensic arguments, and the effect of his eloquence, may be
conceived by the account given of them by his eulegist, Judge Story, who so
often, as he says, listened to him " with pride and pleasure" from the bench.
"Rarely did he speak without attracting an audience composed of the taste, the
beauty, the wit, and the learning, that adorned the city; and never was he heard
without instruction and delight. On such occasions involuntary tears from the
whole audience have testified the touching power of his eloquence and pathos.
On others a profound and breathless silence, expressed, more forcibly than any
human language, the riveted attention of a hundred minds."  The same competent hand, in the eulogy alluded to, has sketched the character of Mr. Dextcr's
oratory, from which the limited space of a note enables me to select only the following passages:' His enunciation was remarkably slow, distinct and musical;
though the intonations of his voice were sometimes too monotonous. His language was plain, but pure and well selected; and though his mind was stored
with poetic images, he rarely indulged himself in ornaments of any kind. If a
rhetorical illustration, or striking metaphor sometimes adorned his speeches, they
seemed the spontaneous burst of his genius, produced without effort, and dismissed without regret.    *      *      *      *      *      *   In the
exordiums of his speeches he was rarely happy. It seemed like the first exercise
of a mind struggling to break its slumbers, or to control the torrent of its thoughts.
As he advanced, he became collected, forcible, and argumentative; and his perc,
rations were uniformly grand and impressive. They were often felt A hen they
could not be perceived."-Story's.Miscellanies.-Eulogy on Dexter.




OLIVER ELLSWORTiI.                     261
ther parol testimony might be admitted to explain certain letters introduced in evidence, he reverses the judgment, without examining the
many learned references and authorities adduced in the argument; the
main reason assigned for the reversal being, because the charge of the
Judge, that such testimony might be admitted, without any qualitications or restrictions, " was too broad, and may have misled the jury."
The habitual brevity of Judge Ellsworth in the delivery of his judgments is observable in all these decisions. Indeed, taken together,
they constitute but an imperfect record of his judicial career, and
scarcely enable us to form a proper estimate of his capacity as a judge
in the discussion of mere legal questions. He seems to have had a
repugnance at all times to enter minutely into the examination of the
subject under discussion, or to state fully the grounds of his decision.
Though an accurate and ready speaker, he was never an easy or fluent
writer. Hence, perhaps, his disinclination to elaborate an argument,
and the reason why so few of his judgments attract attention, in comparison with those of his brethren on the bench;-with the bold and
pointed reasoning of Chase, the keen, subtle, logical argumentation of
Iredell, or even the learned, but florid and scholastic dissertations of
Wilson. Indeed, it mattered very little what was the nature of tle controversy before him, or how intricate the question under discussion
might be; —-tlle same studious and sententious brevity is apparent in
his judgments, whether the point at issue was a mere technical question of practice, or involved the most recondite principles of the common law.
Thus the last case argued at this winter session of 1799-Sims vs.
Irvine,* brought up for examination the effect of the treaty or compact between Virginia and Pennsylvania, and presented an important
question in regard to the nature of the land titles in the latter Sl;tate.
The subject was discussed at great length, and with a profusion of
learning, by some of the ablest counsel at the bar, as the reported
analysis of the argument clearly shows. But the opinion of the ChiefJustice, affirming the judgmcent of the Circuit Court and the validity
of the Pennsylvania land title, is compressed within a single page of
the report. He decides that the survey of the land and payment,
though without an actual patent issued, is a legal title, sufficient to
* 3 Dallas' Reports, 425.




262             LIVES OF THE CHIEF-JUSTICES.
maintain ejectment under the laws of property and tenures of Pennsylvania; and this law, notwithstanding the new distribution of judicial powers in the federal tribunals, must be regarded by them as a
settled RULE OF DECISION, in regard to estates in Pennsylvania. Judge
Iredell concurred in the judgment, but for different reasons, which he
assigns at length in one of his best and most carefully written opinions.
But from the habitual brevity of the Chief-Justice, we do not clearly
see wherein he differs from Judge Iredell, nor in what manner by
another mode of reasoning, he arrives at precisely the same conclusions.
Through the whole period of his official service, Judge Ellsworth
regularly rode the circuits, as had previously been done by his predecessor Jay. The law requiring a Circuit Court to be held by two
Justices of the Supreme Court, with the District Judge, had been modified so as to require the attendance of but one of the Supreme Court
Justices; but the old practice of the allotment of circuits among
the Judges, so that the same Judge, except by his own consent,
should not be assigned to the same circuit until after it had been held
by each of his associates successively, was still in force.* This, of
course, increased the fatigue and labor of circuit duty, and, with the
two regular sessions of the Court in banc at Philadelphia, rendered
the office of Justice of the Supreme Court, in those days when steamboats and railroads were unknown, no sinecure.
As a Judge at nisi prius, Ellsworth has been spoken of in terms of
the highest praise. Perhaps the temper of his mind, his habits of
thought, and his past experience, better fitted him for the performance of this branch of his official duty than any other. He certainly
brought to its discharge qualities of a very high order. A calm, discriminating, and well-balanced, if not original intellect; a solid, practical good sense, equally beyond the reach of influence from passion,
imagination, or prejudice; powers of accurate and unerring, though
not rapid, analysis; courtesy of manner, simplicity and dignity of deportment, an industry that knew no fatigue, and never courted repose,
and an impartiality of judgment and uprightness of character, that
none ever ventured to assail. His charges, particularly those delivered
to grand juries, have been mentioned as deeply impressive, both in
* Act of April 13th, 1792.




OLIVER ELLSWORTH.                         263
matter and manner-breathing a lofty moral tone, and never failing
to inculcate those elevated principles of legal ethics of which the judicial bench is so fitly the expositor.
In the discharge of his circuit duties, Judge Ellsworth did not entirely escape a participation in those criminal trials so celebrated at
that period, some of which left their " fatal dowry" to his less fortunate brother, Judge Chase.* But, unlike that gifted, though indiscreet
* SAMUEL CHASE, the only son of a clergyman, was born in Somerset
County, Maryland, on the 17th April, 1741. At the age of eighteen he commenced the study of the law, in Annapolis, and two -or three years afterwards
established himself there in the practice of his profession.  For several years
prior to the Revolution he was a member of the Colonial Legislature, where he
distinguished himself by his ardent republicanism, his vehement temper, and his
" uncourtly bearing to the court party." In the Continental Congress he performed good service, and by his resolute and persevering energy contributed in
no small degree to bring about the Declaration of Independence. Though originally an opponent of the Federal Constitution, he was appointed by President
Washington, in 1796, one of the Associate-Justices of the Supreme Court of the
United States, an office which he continued to hold, notwithstanding the unhappy
interruption of his official duties by his impeachment before the Senate, until the
close of his life, in 1811.
The extraordinary capacity of Judge Chase has never been questioned or denied. It was such as almost to justify the remark said to have been made of him
by a distinguished member of the Philadelphia bar-neither a personal nor a political friend-that he was the greatest judge he had ever seen. But the strength
of these intellectual endowments was in a measure impaired by an unhappy mental
constitution, and an impetuous, arbitrary temper, which fitted him rather for a
partisan than a judge, and kept him at constant variance with the bar, and indeed all with whom he came professionally in contact; causing him, as it is expressed in his biography, "to be running perpetually with a mob at his heels."
The energy of his character and the fearlessness of his temper, were displayed in a
very striking manner while holding the double office of Chief-Justice of the Geheral Court, and Judge of the Criminal Court in Baltimore. Two persons of respectability had been brought before him charged with participating in a riot, on
whose behalf the most overwhelming and violent popular sympathy was manifested. Refusing to give bail, they were ordered to prison. The sheriff, pointing
to the mob in despair, declined to undertake the task. "Summon the posse
comitatus!;' exclaimed the Judge; but the sheriff replied that no one would obey
the calL  " Summon me then," replied the Judge, with determined emphasis; " I
will be the posse comitatus, and I will take the prisoners to jail!" After some
delay the prisoners yielded, and gave the required bail. Four months afterwards.
when the grand jury refused to find a bill against them, he publicly censured the




264               LIVES OF    THE CHIEF-JUSTICES.
Judge, he passed through the ordeal in safety, and came out of the
furnace without the smell of fire upon his garments. I do not mean
to say that his opinions escaped criticism, and severe, perhaps just,
sheriff for returning so bad ajury. Fired with indignation, they immediately
found a presentment against the Judge for the offence of holding two incompatible offices at the same time.  To this Chase took no exceptions, if they
really believed it to be an offence, though he could not help observing, he said,
that it seemed to flow from a supposed insult to themselves. "You will continue, gentlemen," he remarked with biting sarcasm, " to do your duty, and I
shall persevere in mine; and rest assured that no mistaken opinion of yours,
or resentment against me, will prevent my having a due respect for youas a jury."  But it was in his administration of the criminal law on the bench of
the Federal Courts that Judge Chase acquired the widest and most unenviable notoriety; not that it was characterised by ignorance, much less by actual injustice,
for his keen and powerful intellect lifted him far above the one, and his bold independence and natural magnanimity of temper preserved him from the other. But
Chase brought to the bench the feelings of a partisan; and, as a Judge, he enforced the criminal law, and those penal statutes, which even then, were widely
unpopular, with the unrelenting sternness and severity of the inquisitor. Counsel
as well as prisoner alike experienced his harshness of temper, and were forced to
bear up under his abrupt, arbitrary, dictatorial manner. The " conduct directed
by the Court " on the trial of Fries, drove Messrs. Dallas and Lewis out of the case.
" You may think to embarrass the Court," he remarked to Mr. Dallas, " but you
shall find yourself mistaken." And when the counsel had left the bar, turning
to the prisoner, he observed that, " by the blessing of God, the Court would do
him as much justice as the counsel who had been assigned him." On the trial of
Cooper, at Philadelphia, for seditious libel, he exhibited a comparative moderation,
for the reason, perhaps, that he found very little difficulty in obtaining a conviction; but all the daring of his temper and the dictatorial energy of his mind were
called forth in the famous trial of Callender, which finally brought down on his
devoted head the long pent up vials of the public indignation. Judge Chase
started for Richmond on this trial with the declaration, as was stated at the time,
that he would " teach the lawyers of Virginia the difference between the liberty
and licentiousness of the press;" and so resolutely was his mind bent on obtaining a conviction, that, it is also said on the highest authority, he instructed the
Marshal " not to put any of these creatures called democrats on the jury." During
the whole trial the contest seems to have been mainly between the Court and the
prisoner's counsel; and though the latter were among the most eminent lawyers at
the Virginia bar-Nicholas, Hay, and Wirt-it must be confessed tfiat the indomitable will, and arbitrary and overbearing temper of the Judge got the better
of them. The excitement of the contest appeared to elevate his spirits, to augment his boldness, and even to sharpen his intellectual vigor. As Dryden described
Shaftesbury, he was not only




OLIVER ELLSWORTH.                          265
animadversion; but that while the judgment of the Court was deprecated, the person and character of the Judge were respected; and
" Sagacious, bold, and turbulent of wit;"
but he was also, as was fully exhibited on this trial"The daring pilot in extremity,
Pleased with the danger when the waves ran high."
The eminent counsel who defended the prisoner, foiled and brow-beaten, were
filled with a just indignation. A determination to procure his impeachment, is
said to have been avowed during the trial, and for a long time counsel refused to
appear before him. At length, in 1804, Mr. Randolph moved the long expected
charges against him in the House of Representatives, and the famous impeachment was subsequently tried by the Senate. His conduct on the trial of Fries
formed the first charge, and on Callender's trial the next five charges in the indictment; and though a majority voted him guilty on one or two of these charges,
such as for " rude and contemptuous conduct during the trial," &c., he was saved
from conviction by the failure to obtain a two-third vote.
This unfortunate affair, as might well be imagined, subdued the impetuosity of
his temper, and cast a shadow over the remaining years of his life. Thenceforth
he discharged all the duties of his station with his usual ability, indeed, but with
a calm and formal' moderation, and a haughty decorum, which, though it might
provoke criticism, could not bring down censure on his head. He had always
been esteemed, in everything pertaining to the civil jurisdiction of the Courts, a
wise, able, and impartial Judge, even during the most stormy portion of his
career. His keen and bold intellect, his profound knowledge of legal principles,
his comprehensive and accurate judgment, and his integrity and perfect independence of character, fitted him admirably for the discharge of these duties.
With all the daring of Shaftesbury as a partisan-though without his other
blemishes of character-he might be said to rival that unscrupulous, but capable
minister, in almost his only redeeming trait-his wisdom and capacity as a
Judge. The industry and application of Judge Chase were also great; and
though, hurried away by the ardor of his temper in a season of excitement, he
might come down from the Bench of the Supreme Court, even though his absence
left it without a quorum, and canvass his State on the eve of a presidential election, in behalf of his friend, President Adams, " with such eclat," says Mr. Wharton, "that at his final harangue at Elk Ridge, nearly all Maryland was congregated to listen to a stump speech'two hours long;'" yet he rarely failed at all
other times in the punctilious and thorough discharge of every official engagement. In his private intercourse, though rough, he was not uncourteous in manner. and indeed seems to have favorably impressed all who approached him.
Judge Story saw him late in life, and speaks with great respect both of his abilities
and his unaffected courtesy.'"I suspect he is the American Thurlow," says
Story, in one of his letters, and adds, " I like him hugely."




266               LIVES OF THE CHIEF-JUSTICES.
while his supposed errors were condemned, his integrity of motive
was neither aspersed nor suspected.
I have briefly alluded in the sketch of Chief-Justice Jay to one of
the earliest of those criminal trials, which, from that time to the repeal
of the sedition law, kept the country in a constant fever of excitement
-namely, the case of Henfield.     That trial laid down with circumstantial precision the doctrine of a common-law jurisdiction in the
Federal Courts in criminal cases-a doctrine then, and subsequently,
odious to the republican party, and denounced by some of their ablest
men in unmeasured terms.*     It is, perhaps, unnecessary to say that
Ellsworth was a believer in this doctrine, which no Judge of the Federal Courts at that time, save Samuel Chase, had been bold enough
to deny. The Chief-Justice, however, was but a follower over the
beaten track which his predecessors had travelled, in holding the doctrine of a common-law jurisdiction; and therefore, in a measure, might
escape the censure with which they were visited. But another question now arose, involving a proposition of almost equal importance,
and certainly of no less interest in its political aspects, in the establishThe fact has also been mentioned as strikingly characteristic of Judge Chase,
and illustrative of his bold and independent habits of thought, that he did not hesitate to differ from his brethren and his own party-associates on the most important
questions, even though they might involve political considerations. While claiming to exercise as a Judge in criminal cases the most arbitrary powers, he was
singularly averse to assuming any doubtful civil jurisdiction; thus he was the
first to deny that the Court possessed a common-law jurisdiction, and the last to
admit that it could pronounce an act of Congress void, as being repugnant to the
Constitution.
* Says Jefferson, in a letter to Edmund Randolph, August 18th, 1799. " Of all
the doctrines which have ever been broached by the Federal Government, the
novel one of the common law being in force and cognizable as an existing law in
these Courts, is to me the most formidable. All their other assumptions of ungiven powers have been in the detail. The bank law, the treaty doctrine, the
sedition act, alien act, the undertaking to change the State laws of evidence in the
State Courts by certain parts of the stamp act, &c., have been solitary, unconsequential, timid things, in comparison with the audacious, barefaced, and sweeping pretension to a system of law for the United States, without the adoption of
their legislature, and so infinitely beyond their power to adopt."  *  *  *
" Great Heavens!" he exclaims, in the conclusion of this letter, " Who could have
conceived in 1789 that, within ten years, we should have to combat such windmills!"'3 Jefferson's Writings, 425, 428.




OLIVER ELLSWORTH.                      267
ment of which Ellsworth was to be the pioneer, and the full responsibility of which he was to take on his own shoulders. This was the
question, so often and so ably discussed since that time, whether the
right of expatriation was to be recognized in the Federal Courts as a
part of the municipal law of the country. The question came directly
before the Chief-Justice in the trial of the noted privateer's man, Isaac
Williams, for enlisting on board a French vessel in alleged violation
of a clause in the treaty with Great Britain.  The trial is sufficiently
interesting to deserve a brief notice.*
Williams was indicted and tried at the Circuit Court for the
Connecticut District, at Hartford, in September, 1799. The crime
alleged against him was, that, being a citizen of the United States,
he had accepted a commission as lieutenant on a vessel belonging to
the French Republic, then at war with England, contrary to the
treaty  of amity and   commerce between Great Britain and the
United States.  Williams admitted the act alleged against him, but
claimed that he was a French citizen, offering to show French naturalization papers, and continued residence in France since 1792, except a
period of not more than six months in 1796, when he returned to
America on a visit to his relatives and friends. The case in its general
features was similar to that of Henfield's, with the exception that
Williams relied mainly on his character of a French citizen; and the
question therefore turned entirely upon the point whether the common-law maxim, "no one canthrow off his country, or abjure his allegiance," t was the law of the United States.
Judge Law, the District Judge of Connecticut, sat with the ChiefJustice on this trial, and was of the opinion that the evidence offered
by the prisoner should be left to the consideration of the jury.  But
the Chief-Justice was decidedly of a contrary opinion. He boldly,
* The ruling of Judge Ellsworth upon this trial was very severely criticised,
and particularly in two letters published in the " Examiner," under the title of
"Aristogiton," said to have been written by Mr. Nicholas, of Virginia, in which
the popular American doctrine is very ably and successfully maintained, and
which " exposed completely," says the author of the suppressed history of Mr.
Adams' Administration, " the fallacy of the arguments adduced by the ChiefJustice."
t J.\emo potest exuere patriam, nec debitunz ligeantic ejurare.




268              LIVES OF THE CIIIEF-JUSTICES.
and without the slightest hesitation, mnt the question which ChiefJustice Rutledge and his associates in Talbot vs. Jansen * had avoided
-and which for years after was cautiously avoided by his successors
on the bench-and held that the English common-law doctrine as to
perpetual allegiance, was a part of the municipal law of the land, and
applicable to the case at bar. It is curious to observe, however, that
while the English rule is to be traced to the feudal system, and is
based exclusively on the feudal relation of lord and vassal, the American Judge, applying it in an American Court, deduces it solely from
the comparatively modern doctrine of the social compact as the basis
of government.  All the members of a civil community, he remarks,
in his address to the jury, are bound to each other by compact. The
compact is, that the community will protect its members, and they on
the other hand will at all times be obedient to the laws of the community, and faithful in its defence.  It necessarily follows that the members cannot dissolve this compact, without the consent or default of
the community, &c.
It had been argued with great pertinency and force by the prisoner's counsel, that the policy of the government and its practice in
permitting the naturalization of foreigners,t were sufficient evidence
of consent.  Judge Ellsworth meets and answers this argument with
the following propositions, the soundness of which I shall leave to the
advocates of the doctrine of perpetual allegiance to defend.
"Consent has been argued from the acts of our government permitting
the naturalization of foreigners. When a foreigner presents himself here,
and proves himself to be of good moral character, well affected to the
Constitution and Government of the United States, and a friend to
the good order and happiness of civil society; if he has resided here
the time prescribed by law, we grant him the privilege of a citizen.
We do not inquire what his relation is to his own country; we have
not the means of knowing, and the inquiry would be indelicate; we
* 3nte, pages 184, 185.
t The alien is required on his naturalization to abjure his former allegiance.
Chancellor Kent notices this glaring inconsistency between the doctrines sought
to be established in the Federal Courts, and the policy of the government in its
naturalization laws, which practically asserts the right of all mankind to emigrate
from one country to another, and renounce their allegiance at will.-See 2 Kent's
Cor. p. 49, note.




OLIVER ELLSWORTH.                         269
leave him to judge of that.  If he embarrasses,imself by contracting contradictory obligations, the fault and the folly are his own.  But this implies no corient of the government, that our own citizens should expatriate themselves. Therefore it is my opinion that these facts which the
prisoner offers to prove in his defence, are totally irrelevant; they
can have no operation in law; and the jury ought not to be embarrassed or troubled with them; but by the constitution of the Court the
evidence must go to the jury."
Of course the jury, under this charge of the presiding judge, at
once found a verdict of guilty. Williams was sentenced to four
months' imprisonment, and to pay a fine of one thousand dollars.
Pleading guilty to another indictment for a similar offence, a like sentence was passed upon him   by the Court.   " So much for naturalization acts," says a prominent Federalist of the day.  " The jacobins are
impudent and cross; they think they gain ground; they are mistaken." *
It is scarcely necessary here to remark, that the rule so decisively
laid down by Ellsworth in Williams' case, was widely at variance with
the popular doctrines of the day, and is in direct conflict with the
whole policy and practice of the government since that time. It, indeed, goes far to justify the claims set up by Great Britain in the war
* Letter of Mr. Chauncey Goodrich to Wolcott, Sept. 28th, 1799. The republicans, on the other hand, were indignant at the sentence.
"Great God!" exclaims Aristogiton, "What must have been the feelings of
Judge Ellsworth when he was depriving Williams of this natural right. But I
will suppress the emotions which beat in my bosom upon the recollection of this
hideous sentence, and I will proceed to examine coolly and dispassionately the question. If this alien had not a right to throw off his allegiance to his own country, then
Congress, by making the law, have deprived foreign governments of one of their
most essential rights, and have moreover been guilty of a crime which approaches
very nearly to man-stealing."
In the further examination of the subject, the writer proceeds to put the ChiefJustice in a dilemma from which it is not easy to see how he can be extricated.
" Such is the dilemma," he remarks, " in which he has placed himself. He must
either admit that according to the principles of our naturalization laws our citizens have a right to expatriate themselves, or that the legislature of the United
States, that body whose laws (when they are constituted) he is bound to expound
and enforce, have been guilty of the most horrible of all crimes, and have given a
sufficient cause of war to all the nations of the world."




270               LIVES OF THE CHIEF-JUSTICES.
of 1812, and if recognized by the government as a rule of international law, would strike at the foundation of the right asserted and
exercised by the United States of protecting adopted citizens even
against the wrongful acts of the government claiming their allegiance.
This right has been ably and triumphantly vindicated since that time,*
and may be regarded, so far as the intercourse of this country with
foreign nations is concerned, as a settled principle of international law.
It must be confessed, however, that the Courts have not fully sanctioned the doctrine; but that on the contrary, though never applying
it in its full extent, as it was laid down in Williams' case, they have
in one or two instances been inclined to consider the common-law
principle of perpetual allegiance as a part of the municipal law of the
land.  Such at least was the case in Shanks vs. Dupont,t where Judge
* See the masterly dispatches of Mr. Buchanan, Secretary of State under Mr.
Polk's administration, in the case of Bergen; and that of the present Secretary
of State, Mr. Marcy, in the Kozsta case.
t 3 Peters' Reports, 242. It is worthy of remark that up to this time, though
the question had been repeatedly argued by the ablest counsel at the bar, yet the
Supreme Court of the United States had constantly avoided its decision. The
case of Talbot vs. Jansen has already been mentioned. In the case of Murray
vs. Charming Betsey, in 1804, 2 Cranch, 64, it was discussed at great length
and with commanding ability; but Chief-Justice Marshall, who delivered the
opinion of the Court, avoided the decision with more than his usual caution.
"Whether a person born within the United States," he says, " or becoming a
citizen according to the established laws of the country, can divest himself absolutely of that character otherwise than in such manner as may be prescribed by
law, is a question which it is not necessary now to decide."' And four years later,
in the case of Mcllvaine vs. Coxe's Lessees, 4 Cranch, 209-though the whole
question was again discussed at the bar with an accuracy of learning worthy the
magnitude and importance of the subject, Judge Cusling, who pronounced the
decision of the Court, declined expressing an opinion " upon the right of expatriation, as founded on the common law." In the celebrated case of the Santissima
Trinidad, Judge Story in like manner declined examining the doctrine, though
it had been much discussed at the bar, remarking that it would be  sufficient to
ascertain its precise nature and limits, when it shall become a leading point of a
judgment of the Court." A few years later, however, in the cases of Inglis vs.
Sailors' Snug Harbor, 3 Peters, 15G; and Shanks vs. Dupont, mentioned in the
text, he recognizes the general doctrine to be, that allegiance by birth cannot be
pat off except by consent of the government. But it is to be remarked that even
in the latter case the learned Judge, though stating "the general doctrine " of
the common law, does not undertake  to ascertain its precise nature and linit:s,"




OLIVER ELLSWORTH.                       271
Story recognizes generally the existence of the principle, and Judge
Johnson, in a dissenting opinion, sustains the same proposition in a
very plausible and ingenious argument. If this is to be regarded as a
judicial decision upon the precise question under consideration-which,
however, is by no means clear-then the United States presents the
singular spectacle of a nation administering in its Courts a rule of
municipal law, which its government practically ignores in its intercourse with foreign nations, as a rule of public and international law.
A  position so inconsistent it will be difficult to maintain; and the
question, if ever presented directly to the Court, must doubtless be decided in accordance with the more liberal doctrine, sanctioned by the
practice of the government, which recognizes the right to change allegiance as a natural right, inseparably connected with a bona-fide and
permanent change of domicil. Indeed, but for the opinions of the
learned judges, in the case last-mentioned, it might even now bd confidently asserted that the doctrine of perpetual allegiance as laid
down by Ellsworth, had passed away even as a rule of municipal law,
with the doctrine of a common law jurisdiction, as expounded by his
predecessor. Applied as it was in the case of Williams, it certainly
could not be sustained in our day.    But it should be recollected
that these were times of warm party strife and excitement, and to
suppose that the opinions of the Chief-Justice were entirely untinged
by his known political predilections, would be to suppose him elevated
above human weaknesses and imperfections. It has been observed of
a more profound lawyer than Ellsworth, and of a greater judge than
Jay-none other than the illustrious Mansfield himself-that in those
cases wherein political considerations mix themselves with the trial,
and the result might be supposed to affect party interests or party
prejudices, he was no longer the same lex loquens, the same living pattern of justice.* Nor is it discreditable either to Jay or Ellsworth,
even as a rule of municipal law; and the opinion of Judge Johnson, which, it
must be admitted, is precise and definite upon the point, was a dissenting opinion.
I cannot agree, therefore, with the author of the Notes to the " State Trials," that
the case of Shanks vs. Dupont closed " the long circuit of doubts and reservations," and brought the Court " back again at the position of Williams' case, that
allegiance without mutual consent is indissoluble."
* As for example, in questions of libel, that he leaned against the freedom of
discussion, and favored those doctrines then current, which withdrew the cogni



272             LIVES OF THE CHIEF-JUSTICES.
under similar circumstances, to attribute an honestly entertained, but
erroneous judgment, to the insensible bias of warm party feelings and
political prejudices, when the great mind of Mansfield himself could
not entirely surmount them.
Though Judge Ellsworth received his appointment as envoy to
France on the 27th of February, 1799, he did not proceed upon the
mission until the following November, and in the mean time continued, without interruption, to discharge his judicial duties. It was
during this interval that Williams was tried; and, indeed, so late as
October of the same year he was upon the point of setting out to hold
the Vermont Circuit Court, in place of Judge Cushing, who had been
suddenly taken ill; but the recovery of that judge relieved him of this
duty, and gave him, as he says, time " to sit down and think" before
proceeding on the French mission.
He presided for the last time at a general term of the Court in
August of that year, and among the cases decided at this session delivered the judgment in Turner vs.'The Bank of North America,* in
which the principle is settled that a cause in the Circuit Court must
affirmatively, and upon the face of the pleadings, appear to be within
the jurisdiction of the Court, otherwise the judgment will be reversed
in the Supreme Court, as jurisdiction is never to be presumed. I mention this decision as exhibiting the marked aversion of Ellsworth
to dispose of a cause otherwise than strictly upon the merits, without regard to technical defects. The objection to the record was,
that the pleadings did not show the parties to be citizens of different
States, or one of them an alien, a fatal jurisdictional defect, but one
which he thought might better have been raised in the Court below.
"It is to be exceedingly regretted," he says, " that exceptions which
might be taken in abatement, and often cured in a moment, should
be reserved to the last stage of a suit to destroy its fruits."
Not only did Judge Ellsworth continue in the discharge of his judicial functions down to the last moment, but he actually proceeded on
his mission, as his predecessor Jay had done before him, without
resigning his seat. At that period it was not deemed incompatible
zance of the question from the jury to vest it in the Court.-See Lord Brougham's
"Sketch of Mansfield." Statesmen of Times of George III., Vol. I. p. 113.
* 4 Dallas' Reports, 8.




OLIVER ELLSWORTH.                     273
with the highest judicial station, to annex to it an appointment of a
purely political character. Thus, not only did both Jay and Ellsworth hold the office of Chief-Justice and that of foreign minister at
the same time, but even their successor, Marshall, continued for a
short period to discharge the apparently inconsistent duties of Judge
of the Supreme Court and Secretary of State.
The history of the second French mission, so celebrated in the
annals of our diplomacy, is doubtless familiar to the reader. It seems
necessary, however, in this connexion, to notice it briefly, as a part of
Judge Ellsworth's public life, too important by far to be passed over
entirely in silence.
The unsuccessful result of the negotiation of Marshall, Pinckney, and
Gerry, and the treatment those gentlemen had received from the authorities of the French Republic (which will be noticed in another part of
this work) had created a deep feeling of indignation throughout the
whole country, and particularly among the friends of the Federal administration. It had called out the celebrated declaration of President
Adams to Congress-" I will never send another minister to France without assurances that he will be received, respected, and honored, as the
representative of a great, free, powerful, and independent people;" a
declaration that was greeted at the time with something like universal
acclamation. The ultra-Federal leaders-those who subsequently comprised the Hamilton wing of the party, whom Mr. Adams did not
hesitate afterwards to denounce with bitter and fierce invective,
as the " British faction;" * and who regarded all overtures for negotiation and all terms of friendship with " the regicide Republic" as
incompatible with the national honor and safety-heard with ill-concealed disgust and dissatisfaction the announcement that the President
had rather suddenly determined to send another embassy to France
Accordingly when the name of the envoy first proposed-William
Vans Murray-was sent in to the Senate, it was strongly intimated
that he would not be confirmed.   "Some of the President's real
* In one of his famous Cunningham letters, Mr. Adams remarks, that he could not
have lived through another year of " such labors and cares as were studiously and
maliciously accumulated upon me, by the French faction, and the British faction;
the former aided by the republicans, and the latter by Alexander Hamilton and
his satellites."
18




274               LIVES OF    TIIE CHIEF-JUSTICES.
friends," says the Secretary of State, in a letter to Murray, " endeavored to persuade him to withdraw the nomination.     He was inflexible.
They then determined to put a netgatire upon it."     Mr. Adams, with
the characteristic promptness which so strongly marked all his actions,
anticipated this design, and two days afterwards sent in the names of
Oliver Ellsworth and Patrick Henry, with that of Mr. Murray, as
joint envoys to the French Republic. The " President's real friends"
thereupon thought better of the matter, and consented, though with
some hesitation, to confirm   the appointments.    Mr. Henry, having
declined on account of his age and infirmities, Governor Davie, of
North Carolina, was substituted.
It was with unfeigned reluctance that Judge Ellsworth consented to
accept this commission.   It was extremely distasteful to him, not on
personal considerations alone, but also no doubt because he was satisfied that it was viewed with disfavor by a large portion of the leading
men of the party with whom    he acted.*    The editor of the Wolcott
* The French mission was the cause. if not of the original difficulty, at least of
the final rupture between President Adams and the Hamilton branch of the Federal party, including three members of his own Cabinet, Pickering, McHenry, and
Wolcott.  The charges against Mr. Adams by his Federal friends-or perhaps
more properly enemies-of his having violated the solemn declaration of his message to Congress of June 21st by nominating the embassy to France, do not appear
to be just. He has himself ably and successfully vindicated his action in this respect in his celebratetd " Cunningham Letters," to which it is scarcely necessary
here to allude. "' qssurances "7 certainly were given by the French government,
and conveyed in perhaps as direct a manner as could have been reasonably expected. These assurances were received partly through Mr. Gerry on his return
from France, but principally through 3Ir. Murray, the American Minister at the
Hague. In Talleyrand's letter to the French Charge at the Hague, the assurances
required by Mr. Adams' message to Congress are made almost in i',ntical words.
"Whatever plenipotentiary the government of the United Stat,.-':ight send to
France to put an end to the existing differences between the countries, would be
undoubtedly received with the respect due to the representatives of a free, independent, and powerfiul nationo.  Het then charges him to communicate this to
Mr. Murray that it might i e transmitted to the government of the United States.
Carry therefore, citizen.' h1 sa-,'"to 11. M3lrray, these positive instrt.ctions, in
order to convince him of our sincerity, and prevail upon him to transmit them to
his government."' These overtures were cl-ilI.T cd by Mr. Adams to be substant;ially the'   asLsurances:   he Iadl relul'ed a  Lar;U:liminary t.o ae appointmient, and
accordingly on his own r.esp.,ib it, ad \\i,-l t cca,'ition wit!h hi. Cabinet,




OLIVER ELLSWORTH.                          275
papers-who has certainly made out a very ingenious case in favor of
the Cabinet and against the President in his history of the Adams'
Administration-states that Ellsworth would have refused to go but
for the apprehension that Madison or Burr would have been sent in
his place.  He alleges, also, but upon what authority it does not appear, that the Chief-Justice to the last disapproved the mission.*
This certainly seems to have been a mistake.    Though Ellsworth had
doubtless advised a suspension of the mission until "it could be better seen " to whom   the envoys should be accredited, yet there is no
evidence that he did not enter upon the duty with alacrity, and hopeful of success.  Indeed, from the statements that have been given, it
would seem that he even yielded his opinion as to the policy of supending the mission.
In the early part of October President Adams called upon him at
his seat in Windsor.   Mr. Adams left the following statement of the
interview:   " He was perfectly candid.     Whatever should be the
determination, he was ready at an hour's warning to comply.       If it
was thought best to embark immediately, he was ready.        If it was
judged more expedient to postpone       it for a little time, though
that might subject him to a winter voyage, that danger had no weight
he sent in to the Senate the name of Mr. AMurray as Minister to France, with whom
Ellsworth and Davie were afterwards joined. It was not intended, however, as he
remarked in his message to the Senate, that they should proceed on their mission
until they had "received from the Executive Directory assurances, signified by
their secretary of foreign relations, that they shall be received in character; that
they shall enjoy all the prerogatives attached to their character by the law of nations; and that a minister or ministers of equal powers shall be appointed and
commissioned to treat with them."  This was communicated by Murray to Talleyrand, who promptly replied in his official character, giving unequivocally the
assurances required. On receipt of this communication the envoys were directed
to hold themselves in readiness, and their instructions were prepared. The further
delay of two or three months which occurred was occasioned by the Revolution
of the 30th Prairial. The French Directory, it was supposed, would soon fall to
pieces, and this was deemed by the Cabinet a sufficient reason for an entire suspension of the mission. Mtr. Adams, however, thought differently; and, after
waiting a reasonable time, took upon himself the responsibility of sending off the
envoys, contrary to the known wishes of his Cabinet advisers. This kindled the
tfame which during the remainder of his administration continued to blaze with
intense energy and warmth.
* 2 Gibbs' Wolcott, 274.




2 76             LIVES OF THE CHIEF-JUSTICES.
with him. If it was concluded to defer it till the spring, he was willing to wait. In this disposition I took leave of him." This statement of Mr. Ellsworth's willingness to embark on the mission is corroborated by what took place a few days after at Trenton, where the
President met Governor Davie and Ellsworth at dinner. An idea,
strangely enough, seems to have been entertained at that time, that
the first arrivals from Europe would bring what some of the Federal
leaders called "the glorious news" that Louis XVIII. had been
restored to the throne of France. Ellsworth, it appears, shared in
this delusion, which failed, however, to deceive the keener and more
experienced mind of Mr. Adams.     " Is it possible, Chief-Justice,"
asked the latter, that you can seriously believe that the Bourbons are
or will be soon restored to the throne of France?"  "Why," said
Ellsworth, smiling,' it looks a good deal so."  Mr. Adams was not
afraid, he said, to stake his life upon it, that they would not be restored in seven years, if they ever were, and thereupon entered into a
detail of the reasons of his opinion, which he declares convinced Ellsworth, who expressed himself satisfied and willing to embark as soon
as the President pleased.*
That Ellsworth was not only willing to proceed on the mission, but
actually assented to the policy which dictated it, and was hopeful of
its success, is, I think, fully evident, from his subsequent conduct.
Writing to Wolcott on the 1st of October, he says, " I think that the
prospects of that distracted country (France) and of Europe, and of
course our own, begin to brighten. Pray indulge in the same thought if
you can, for you certainly stand in need of it." t  A short time after, he
thoroughly disgusted both Pickering and Wolcott by repeating the
President's remark, in answer to the argument that the French negociation would produce a war with England, " What if it does, England cannot hurt us."  This remark was too much for Mr. Pickering.
"I had not patience to hear more," he observes; I and left Ells* See Mr. Adams' Cunningham Letters. This statemnent is not considered entirely reliable by Mr. Gibbs, who, in his anxiety to make out a strong case against
President Adams, seems disposed almost to send Ellsworth on a compulsory mission.
t 2 Gibbs' Wolcott, 266.: Letter to General Washington, October 24th, 1799.




OLIVER ELLSWORTH.                   277
worth, doubtless under the impression that he had become a backslider from that orthodox doctrine which regarded hostility to France
and friendship for England as an essential element of political faith.
The truth is, Ellsworth did not sympathize with the friends of
Hamilton in the cabinet in their opposition to this important measure
of Mr. Adams' administration, which was doubtless then considered,
as it has subsequently been characterized by an able advocate of
their views, " the crowning effort of democratic skill and sagacity." *
That opposition was based upon the theory that there was necessarily something jacobinical and democratical in everything which
looked like a negotiation with the French Republic, and that this
of course was to be avoided. " All deprecate the French mission,"
says Pickering, in a letter to General Washington, " as fraught with
irreparable mischief."  The Chief-Justice, however, seems to have
risen superior to these narrow views of party policy. For a politician
of those times he might have been considered a moderate partisan.
He was one of those who had not yet learned to regard a Democrat
as " out of the pale of social sympathy;" and, besides, he had the
sagacity to perceive, what others, in the blindness of party zeal, were
so prone to overlook-the importance of preserving peace with France
as well as with England, and of extending by treaty the commercial
intercourse of the country. With these statesmanlike views, Oliver
Ellsworth, though a Federalist, and attached by strong ties to that
party which regarded the measure with so much disfavor, set out with
Governor Davie to negotiate a treaty with the French Republic.
The envoys left Newport on the 3rd of November for Lisbon, where
they arrived on the 21th. Before they reached that place, however,
a new and important phase was presented in the political horizon of
France and Europe. The revolution of the 18th of Brumaire (November) 1199, was accomplished; the " five kings" had been driven out
ignominously from the Luxembourg; and the fortunate soldier of
Lodi and Arcola had risen to the chief power in the State. A single
day in Paris had overthrown the Republic;-one throe of the revolutionary earthquake had changed the face of Europe and the world.
These great events had transpired while the American envoys were
yet tossed on the bosom of the Atlantic. Fate had destined that
* 2 Gibbs' Wolcott, 222.




278             LIVES OF THE CIIIEF-JUSTICES.
they were not to place their credentials in the hands of the profligate
Barras and his brethren of the Directory, nor, as Ellsworth had
vainly conjectured, into those of the restored Bourbons. They arrived as the day was breaking over the new revolutionary chaosa chaos already fast subsiding into order-and just in time to greet
the rising star of Napoleon.
Doubtful whether their letters of credence would avail them with
the new government, the envoys hesitated as to what course to pursue. Though slowly proceeding onward toward Paris, they took the
precaution to send letters in advance to Talleyrand, who retained his
office of minister for foreign affairs. Bonaparte had the sagacity to
see, what the imbecile folly of the Directory caused them to overlook,
the importance of a commercial treaty with the United States. The
American envoys were promptly advised that the form of their letters
would present no obstacle, and that they were " expected with impatience, and would be received with warmth."  Ellsworth and Davie
thereupon pushed on to Paris, which they reached on the 2nd of
March, and there found their colleague, Mr. Murray: who had arrived
from the Hague the day previous.
Six days after their arrival they were presented to the first consul
in form, and they certainly had no cause then, or subsequently, to
complain of any want of cordiality in their reception.* Bonaparte
immediately appointed his eldest brother, Joseph, and two of his
councillors of state, Fleurieu and Roederer, to treat with them. Soon
after the negotiations commenced, which finally ended in the treaty
of the 30th September, 1800.
Almost at the outset of the negotiations a serious difficulty occurred. The American ministers had been instructed to insist upon indemnities for illegal captures made by privateers of the Republic.
The French commissioners, on the other hand, insisted upon the restoration of the treaties of 1778 (which it was alleged the United States
* The audience was a public one in the Hall of the Ambassadors, at the palace
of the Tuilleries, and was attended by the two other consuls, the ministers of the
French government, the ministers of foreign powers, and other public functionaries;
and the whole presented a striking contrast with the studied indignity with which
the Directory had treated the late envoys from the United States.-Life of Davie.
25 Sparcks' dm. Biog.




OLIVER ELLSWORTH.                        279
had violated), and the privileges guaranteed by the Convention of
1788.*   Both parties were unwilling, and one, at least, unable to
comply. A full renewal of the French treaties of alliance, &c., was
impossible by reason of the engagements contracted by Mr. Jay's
treaty with Great Britain.  This was urged by the Americans; and
on the other hand, the French commissioners replied " that their real
object was to avoid indemnities, and that it was not in the power of
France to pay them." t   In other words, the French refused to pay
indemnities for acts growing out of alleged infractions of the treaties,
unless those treaties were restored, which certainly seems not to have
been unreasonable; and the Americans very properly refused to
accept indemnities, when by doing so they must " subject their country perpetually to the mischievous effects of these treaties."  Here
then the negotiations came to a stand; and here it was the opinion
of the Hamilton Federalists they should have finally terminated.  Not
so, however, thought Ellsworth and his associates. Unable to agree
upon these points, instead of throwing up their commissions in disgust, they took the wiser, more politic, and more statesmanlike course
of negotiating a commercial treaty-favorable in all respects to their
country-leaving those points which could not then be satisfactorily
settled for a future " definite adjustment." f The second article of
the treaty, as finally agreed upon, provided that as to these subjects
(the treaties and convention, and the indemnities) " the parties will negotiate further at a convenient time, and until they may agree upon
these points the said treaties and convention shall have no operation,
and the relation of the two countries shall be regulated as follows." ~
* See remarks in regard to the origin of the difficulties with France in subsequent sketch of Marshall.-Post, page 332, and note.
t See a full account of this negotiation in a letter by the American Envoys to
Secretary Marshall, October 4th, 1800.: It is not a little remarkable that the same men who had so warmly sustained
the incomplete treaty of Jay, should have so obstinately opposed that negotiated
by Ellsworth and his associates, which certainly compares favorably with it in
every respect. But it is to be recollected that the party politics of the day made
a vast difference between a negotiation with France and one with England.
~ See U. S. Statutes at large, Vol. 8, p. 178. This article was struck out by
the Senate and a provision inserted that the treaty should remain in force for the
term of eight years. Bonaparte accepted the amendment with the further proviso




280               LIVES OF THE CIIEF-JUSTICES.
As to all other matters, the provisions of the treaty were ample and
satisfactory, and honorable to both parties.*    The debts due by the
French government were covenanted to be paid as though no misunderstanding had taken place; and under this provision, and the subsequent treaty of 1803, claims to the amount of twenty millions of francs
were made good against France, so late as the administration of President Jackson.
The commercial relations of the United States were also amply provided for by the treaty.   2Free ships were to make free goods,t and
that "the two States should mutually renounce the respective pretensions which
are the subject of this article." In this shape it was finally ratified by the Senate
early in Mr. Jefferson's administration.
* The fortunate issue of these negotiations was celebrated by the French commissioners with some degree of pomp and eclat. Joseph Bonaparte gave an elegant
entertainment at his beautiful seat at Monfontaine, at which all the ambassadors
were present. " The first consul went there accompanied by a brilliant and numerous party. Elegant decorations set up in the mansion and gardens everywhere
exhibited France and America united. Toasts suited to the occasion were drank.
The first consul proposed,'The names of the French and the Americans who died
on the field of battle for the independence of the New World.' Lebrun proposed,'The union of America with the northern powers, to enforce respect for the liberty
of the seas.' Cambaceres gave for the third,'The successor of Washington.'"
-Thiers' Cons. and Empire, Book VII.
t The principle that free ships make free goods, that is to say that the property
of belligerents, except articles contraband of war, shall not be liable to confiscation
when found in neutral vessels, had been proclaimed by the Empress of Russia in
1780, and acceded to by all the great commercial powers, except Great Britain,
which alone resisted, and from that time to the present has continued successfully to
resist the introduction of the principle into the international code. America first
obtained its recognition in the treaty with Prussia in 1785, which was closely followed by this treaty, negotiated by Ellsworth and his associates. The Baltic
powers, about the same time, were attempting again to enforce those liberal commercial principles, so favorable to the commerce and prosperity of neutral nations;
but the maritime superiority of Great Britain soon dissolved the league, and put
down the attempt at a forcible innovation upon what was regarded as the settled
principles of international law. During the wars of the French Revolution our
own government seems to have practically recognized the validity of the English
rule, as appears by the correspondence of the state department and our diplomatic
agents abroad. It was virtually conceded, under the provisions of the Jay treaty,
and was subsequently repeatedly sanctioned by decisions of the Supreme Court.
(See 1 Kent's Commentaries, 12;G 128. Case of the Nereide, &c.) The right of abelligerent power to search our vessels for enemy's goods seems not to have been made




OLIVER ELLSWORTH.                          281
the neutral flag to protect the cargo; and commerce between the
two countries was made reciprocally free, and placed upon the footing of the most favored nations. Under these provisions the ships of
the American merchants soon secured a large share of the carrying
trade of the Atlantic, and the United States entered upon that career of
commercial prosperity, which is unexampled in the history of the world.
The treaty was of course disapproved by those who originally opposed the mission, and who regarded its consummation as but another
step in the downfall of the Federal policy.  " It is now certain," says
Wolcott, in a letter to Pickering,* " that the mission has proved as
unfortunate as we considered it at the time it was instituted."
a point of controversy in the discussions which led to the war of 1812'; the government merely denying that the right extended to search for seamen or subjects.
Great Britain conceded nothing on the subject by the treaty of peace; nor has she
done so in any subsequent treaty up to the present time. The recent events in
Europe, however, appear to have rendered it evident to the British government
that it can no longer maintain a doctrine so oppressive and unjust to the rights of
neutral nations. The time has at length arrived when the voice of a majority of
the nations of the civilized world will be able TO CHANGE an arbitrary rule of
international law, even without the assent of that nation which so long and so
perseveringly, and so successfully maintained it. America, as the leading neutral
commercial power, is of course the first to assert the liberal principles of commercial freedom and reciprocity proclaimed by the Baltic league in 1801, and embraced in the Prussian treaty, and the French treaty, and if necessary will maintain and enforce them as the cardinal principles of a new and more enlightened
code of international law. It is gratifying however to observe that England,
though apparently reluctant to concede the principle, seems at last willing that
it shall be practically applied as a part of the code of nations. "Her Majesty
is willing for the present," says the recent proclamation of the Queen, "to
waive a part of the belligerent rights appertaining to her by the law of nations." One of these rights which her Majesty declares herself thus willing to
forego, is "the right of seizing enemy's property laden on board a neutral vessel,
unless it be contraband of war."  It may well be believed that this right, thus
waived "for the present," will never again be recognized as resting upon any
known principle of international law, certainly not by either the express or implied assent of this country, without which it would be somewhat difficult to revive
an obsolete or abrogated principle of the international code. Henceforth the
United States, as a neutral nation, will stand among the belligerents of Europe,
on the broad and liberal principles of the treaty negotiated by Ellsworth and
his colleagues, that free ships make free goods, and that the neutral flag shall
protect the cargo.
* December 28th, 1800. 2 Gibbs' Wolcott, 461.




282              LIVES OF THE CHIEF-JUSTICES.
What seemed to strike them with most amazement was the participation of Ellsworth in this " unfortunate" business; and they could
account for it only on the hypothesis that sickness had impaired or
destroyed his intellect.  In this same letter Wolcott remarks: " You
will read the treaty which was signed with France with astonishment.
I can account for it only on the supposition that the vigor of Mr.
Ellsworth's mind has been enfeebled by sickness." And in another of
about the same date, to Hamilton: "You will be afflicted on reading
the treaty with France.  Mr. Ellsworth's health, I fear, is destroyed." *  Pickering replies in the same lugubrious strain: " The treaty
with France, as you suppose, has excited my utter astonishment.
Davie and Murray always appeared to me fond of the mission, and I
supposed they had made the treaty; but when informed that our
friend, our highly respected and respectable friend, Mr. E-   was
most urgent for its adoption, my regret equalled my astonishment.
The fact can be solved only on the ground you have suggested." t
Sedgwick entertained similar views. He thought the treaty plainly
showed that " the mind, as well as body, of Mr. Ellsworth are rendered feeble by disease."7  Gunn thought the thing " detestable,"
and that its ratification " would be dishonorable." ~  Otis saw in it
but " another chapter in the book of humiliation;" 11 and even John
Marshall, though in favor of ratifying it, was " far, very far from
approving it." ~[
Such was the general opinion entertained by Mr. Hamilton and his
friends.** But, upon the other hand, to say nothing of the approval
* 2 Gibbs' Wolcott, 460.
t 2 Gibbs' Wolcott, 463.
t Sedgwick to Hamilton, Dec. 17th, 1800.-6 Hamilton's Works, 491.
~ Gunn to Hamilton, Dee. 18th and January 9th. Ibid. 492, 508.
11 Otis to Hamilton, Dec. 17th. Ibid. 490.
~T Marshall to Iamilton, January 1st, 1801. Ibid. 502.
** Though Hamilton advised the ratification of the treaty, he did not hesitate to
condemn it in his private letters to his friends. Writing to Sedgwick under date
of December 22, 1800, he says: " The Convention with France is just such an
issue as was to have been expected. It plays into the hands of France by the
precedent of those principles of navigation which she is at this moment desirous
of making the basis of a league of the northern powers against England."
-Hamilton's Wforks, Vol. 6, p. 495. Similar views are expressed in a letter to




OLIVER ELLSWORTH.                         283
of the republican party, let us hear Mr. Adams speak, whose opinion
is certainly entitled to some weight.  He considered it, he said, "the
most disinterested, the most determined, and the most successful"
action of his whole life.  " Had it betrayed a single point of essential
honor or interest," he exclaims, with his accustomed energy, "I would
have sent it back as Mr. Jefferson did the treaty with England, without laying it before the Senate.  If I had been doubtful, the Senate
would have decided." *   The Senate did decide, and, with the amendment of the second article, ratified the treaty.t
It may be added that Ellsworth himself, though not obtaining all
he desired, was fully satisfied with the general results of his labor.
"Be assured," he remarks, in a letter to Wolcott, " more could not
be done without too great a sacrifice, and as the reign of JacoGouverneur Morris, to whom he points out as an objectionable feature the article
of the treaty providing that free ships should make free goods, and that the
flags of ships of war shall protect. They were features, he thought, which would
not be pleasant to the British Cabinet, and therefore were " to be regretted at the
present moment." Hamilton's reasons for urging the ratification of the treaty
seem to have been, as expressed in these letters, to avert " the utter ruin of the
Federal party;" and besides he thought it better " to close the thing where it is,
than to leave it to a Jacobin administration to do worse." At the same time, he
says, he wished his friends in the Senate to declare that they thought "the treaty
liable to strong objections, and pregnant with dangers to the interests of this
country."
How, then, it might be asked, could Hamilton, with perhaps the same pen with
which he had traced these private communications, publicly declare the treaty
"a an honorable accommodation"? In that caustic Review of " the public conduct
and character of John Adams, Esq., President, &c.," which he published about
this period, he remarks: "The final issue of the mission in an honorable accommodation, may compensate for the sacrifice of consistency, dignity, harmony, and
reputation at which it was undertaken." In this same paper, Hamilton, in sustaining his position, and making out his case against his adversary, seems inclined
to concede the main point in the argument of the opponents of the treaty.
"When, afterwards, commissioners were appointed," he remarks,'"I expressly
gave it as my opinion that indemnification for spoliations should not be a sine
qua non of accommodation." —7 Hamilton's Works, 714, 724.
* Cunningham Letters, No. XII.
t Gouverneur Morris thought with this amendment and the retrenchment of the
third article, which provided for a mutual surrender of captured vessels of war, the
treaty would be " no bad bargain," and so expresses himself in a letter to Hamilton.-6 Hamilton's Works, 503.




284             LIVES OF THE CIIIEF-JUSTICES.
binism is over in France, and appearances are strong in favor of
a.general peace, I hope you will think it was better to sign a convention than to do nothing."  And to Pickering: " My best efforts and
those of my colleagues have not obtained all that justice required, or
which the policy of France should have given. Enough is, however,
done, if ratified, to extricate the United States from a contest, which it
might be as difficult to relinquish with honor, as to pursue with a prospect of advantage." *
The moderation, wisdom, and sound sense of these views, and
indeed, the whole conduct of Ellsworth in undertaking the French
negotiations, strongly recommended him to moderate and enlightened
men of both parties as a suitable candidate for the Presidency. A
caucus of the moderate Federalists was held in the autumn of 1800,
at which it was said this project was determined on in case Mr. Adams
should withdraw. But the withdrawal of Mr. Adams was impossible
in the then state of the feud between himself and Hamilton; and besides, that very moderation of sentiment which recommended Ellsworth to one portion of the Federal party, utterly estranged him from
the other.
Meanwhile, Ellsworth, a stranger to all these intrigues, having
completed his negotiations in France, and being unable on account
of the state of his health to return immediately to America, was preparing to pass over into England. He had become wearied with
his residence in Paris. A stranger to the language, as well as the
customs and manners of the French people, with little taste for
works of art, or the conversation of savans and littcrateurs, and
less for those light amusements and elegant frivolities which make
up so large a segment of metropolitan life, and which, indeed, his
rigid and austere New England morals did not suffer him to approve, he found but little pleasure, and no great degree of sympathy in the society which surrountded him. Nor, his mission being
ended, was his a character or a reputation calculated to command
those nameless attentions which might have served to render a longer
residence in France agreeable. Unlike Franklin, who came to Versailles under the prestige of a reputation that drew upon him the
favorable eye of royalty itself, the plain New England Judge had
* 2 Gibbs' Wolcott, 434, 463.




OLIVER ELLSWORTH.                         285
come to Paris unheralded and comparatively unknown.*           In that
brilliant circle of courtiers and soldiers which the first consul called
around him, a mere civilian or jurist stood a fair chance of being entirely lost in the glittering crowd.  Erskine himself experienced the
truth of this a year or two later. Utterly eclipsed in the shadow of
his celebrated countryman, Mr. Fox, the first consul brushed past the
illustrious advocate with the abrupt and hasty question, " Etes-vous
legiste?" t  Nor could it be supposed that the simple manners and
austere character of the American Judge would have attracted a
greater degree of attention. Another, and perhaps a stronger motive
for his leaving France was the hope of his obtaining some relief to the
distressing malady which afflicted him, by the use of the mineral
waters of England.    His constitution had indeed become so shattered
as to render it uncertain when he would be able to resume his judicial
duties, and accordingly he sent over his resignation of the office of
Chief-Justice before leaving France, to the regret, it is said, of his
countrymen of all parties.   " Sufferings at sea," he says, in a letter
to Wolcott, from   Havre,T "and a winter's journey through Spain,
* It is said that even during the continuance of the mission, Ellsworth, though
at the head of the embassy, received less attention than one at least of his colleagues. The private Secretary of Governor Davie thought that'" the imposing
appearance" of that gentleman, his " dignified deportment," and what he calls
" a slight degree of hauteur," attracted more consideration than the plainer and
more homely manners of his colleague. "I could not but remark," says the
Secretary, " that Bonaparte, in addressing the American legation at his levees,
seemed for the time to forget that Governor Davie was second in the commission,
his attention being more particularly directed to him."-Life of Davie, 25 Spark's
Am. Biog. 125.
t 2 Roscoe's British Lawyers, 193.
t October 16th, 1800. 2 Gibbs' Wolcott, 434.
Mr. Jefferson seems to have drawn an unwarrantable inference from the fact,
that the Chief-Justice remained in Europe after the treaty was signed. In a confidential letter to Madison he says: "Ellsworth remains in France for his health.
HIe has resigned his office of Chief-Justice. Putting these two things together we
cannot misconstrue his views. He must have had great confidence in Mr. Adams'
continuance, to risk such a certainty as he had."  3 Jefferson's Writings, 448.
Jefferson speaks of the treaty in the same letter as " a bungling negotiation."
Though in the main satisfied with it; he considered it as containing " some disagreeable features," and was of the opinion that it would " endanger the compromitting us with Great Britain."




286             LIVES OF THE CHIEF-JUSTICES.
gave me an obstinate gravel, which, by wounding the kidneys, has
drawn and fixed my wandering gout to those parts. My pains are
constant, and at times excruciating; they do not permit me to embark for America at this late season of the year; nor, if there, would
they permit me to discharge my official duties. I have, therefore,
sent my resignation of the office of Chief-Justice, and shall, after
spending a few weeks in England, retire for winter-quarters to the
south of France."
Prompted thus by ennui, by a desire to obtain some relief to his
disease, and perhaps by a natural curiosity to visit the land of his
forefathers, Ellsworth passed over to England. Here, it seems, he
found his residence more agreeable, and he contrived to pass not only
with profit, but with pleasure, a much longer period of time than he
had intended. The name of the American Clief-Justice was not unknown to the English bench and bar; it had found its way into Westminster Hall; and on his arrival in England he was received with
marked respect and attention, and was surrounded by a group of eminent lawyers and judges, by one or two of whom, it is said, he was
asked some very curious and perplexing questions. On a visit to
Westminster Hall he was invited to a seat by the side of Lord Kenyon, then sitting with Judge Le Blanc and Judge Grose in the King's
Bench.  Of that visit Mr. Wharton, in his entertaining notes to the
American State Trials, has given the following lively and graphic
description.
"It was, as is said, during the train of arguments, which are reported in
the beginning of the first volume of Mr. East, that the American ChiefJustice visited Westminster tHall. The famous case of Rex vs. Waddington was then before the Court, in which all the leaders of the bar
were retained, and at the inception of which a scuffle is said to have taken
place near Mr. Garrows' Chambers, between the emissaries of the two
contending interests, cacll seeking to be the first at the door of that eminent advocate. Mr. Law led off for the defendants in the proceedings
in arre st of judg'ment, and was followed by Mr. Erskine, Mr. Garrow,
anid Mr. Scott. Notwithstandingl Mr. Jay's previous appearance at
the Court of St. James, and the contemporaneous presence there of
Mi'. K. g, the fame of their accolmplishments had not reachl.led the
Kil-!ig' Baloch, whose precinlcts they had probably never invadl d; and




OLIVER ELLSWORTH.                    287
it was, consequently, with great curiosity that the elder lawyers, whose
notions of America had been derived from the kidnapping cases which
were the only precipitate cast on the reports of the Privy Council, by
the current of Colonial litigation, spied out the American Chief-Justice.
Mr. Ellsworth's simple, but dignified carriage, so much like, as is said,
that of his successor on the bench, was in happy contrast to the awkwardness of the English Chief-Justice; and, as soon as it was discovered
that, though his worn and marked features bore a stamp which had not
then become familiar to the English eye, he was neither an Indian
nor a Jacobin, two things regarded as equally beyond the limits of
civilized sympathy, he was surrounded by a knot of lawyers, curious
to know how the common law stood transplanting. Still, the obscurity
which hung around the history of the American Republic, could not
but produce some confusion; and it was with this view of the supposed creolishness of the American people-a hybrid between the
Englishman and the Indian, mingling the distinctive powers of each
without that power of perpetuating them, which the old philosophers
thought belonged only to unmixed races-that Judge Grose, with
an air, it is said, of grave delicacy, inquired whether the obstruction
of the course of descent had not turned fee simples into life estates.
Perhaps to the same uncertainty may be traced the question which
Mr. Garrow is said to have addressed to the American Judge, " Pray,
Chief-Justice, in what cases do the half-blood in America take by
descent?"
The recreations of the Chief-Justice in England were diversified by
travel; and among his other employments he amused himself with
tracing the records and traditions of his family. On a small stream, a
few miles from Cambridge, he found a hamlet called Ellsworth. To
his surprise he learned that many of the inhabitants of the hamlet
bore the same name. Inquiring the origin of the name, he was told
that being a famous place for eels, the inhabitants had called it Eelsworth-worth being the Saxon name for place. By a trifling alteration of the first syllable the name of Ellsworth is obtained. His ancestors had emigrated from that part of England a century and a half
before.
On his return to America, in the spring of 1801, Eii-sworth retired
to his residence at Windsor, but the people of Coaieetic.nt were yet




288             LIVES OF TIE CHIEF-JUSTICES.
unwilling to allow him that repose in private life which he now courted.
Though his health was feeble, and his constitution impaired by disease,
still his intellect was active and vigorous as ever. It is true, he was
no longer equal to the labor of the Federal judiciary, attended as it
was by the toil and fatigue of circuit duty, but his wisdom and experience might yet be available in the legislative and judicial councils of
his own State. Though thewar-worn veteran was no longer fit for
foreign service, he could still stand sentinel on the watch-towers at
home and guard the domestic citadel. He was accordingly called,
almost before the dust of foreign travel had been shaken from his
feet, to take his place among the Assistants of the Connecticut Council, and as sucli ex-offcio Judge of the Supreme Court of Errors
of the State —a position which eighteen years before he had resigned, to hold his seat on the bench of the Superior Court.
Jonathan Trumbull, Governor of the State, presided in the Supreme
Court of Errors at the time Ellsworth took his seat in it, in 1802, and
continued to do so, down to the termination of its existence as a Court
in 1807. The Governor, Lieutenant-Governor, and the twelve Assistants or Senators, at that time composed the Court. It met alternately
at Hartford and New Haven, and, as I have already mentioned, sat
as a Court of Review over the judgments rendered in the Superior
Court. Its decisions are to be found collected in Day's Connecticut
Reports, to which the professional reader is referred. Though comprising a great variety of questions, full of interest to the lawyer and
jurist, they do not serve to throw much additional light upon Ellsworth's judicial career. The judgments delivered are generally reported as the opinions of the whole Court, without connecting them
with the names of the particular member or members by whom they
were drawn; and we can, therefore, discover but few traces of individuality in these opinions, and of course cannot undertake to determine
what particular portions of them may have been the emanations of
Judge Ellsworth's mind. That which was delivered in the important
case of Fitch vs. Brainerd,* holding a will of real estate executed by
a feme covert to be void-a closely written and logically reasoned legal
argument-might very well be supposed to be his. It sustained a
* 2 Day's Reports, 163-194.




OLIVER ELLSWORTH.                    289
former decision made by the Superior Court while he was a member
of that tribunal, in the case of Adams vs. Kellogg, noticed on a preceding page,* which the Court of Errors on appeal had reversed.
As a member of the Council, and ex-oficio Judge, Ellsworth, though
subject to occasional fits of distressing illness, continued his annual
attendance upon the Legislature and the Courts down to the close of
the session of 1807. In May of that year the judiciary system of the
State was changed-the Superior Court having been blended with the
Court of Errors. Desirous of giving dignity to the new system by the
appointment of a Chief-Justice of the highest character, Judge Ellsworth was selected to fill that place.  He consented at first to
accept, but before the close of the then session of the Legislature,
feeling strong symptoms of a recurrence of his disease, and persuaded
that he could not survive many more of its attacks, he declined the
appointment.
Soon after he was seized with great violence, and for a time his
life was despaired of. He partially recovered, however, and was so
well in October as to be able to attend during part of the session of
the General Assembly at New Haven. Returning to his seat at
Windsor, he was again attacked, this time fatally; and, after a severe
illness of eight days, expired in the midst of his family, on the 26th of
November, 1807, in the sixty-third year of his age.
His funeral was attended on Saturday the 28th. A sermon adapted to
the melancholy occasion, says a cotemporary publication,t was preached
by the Rev. Mr. Rowland, of Windsor, to a large assembly collected
from that and the adjacent towns to pay the last duties to their deceased friend and fellow-citizen. He was interred in the burial-yard
of the Congregational Church at Windsor, of which church, from
early youth, he had been a sincere, an exemplary, and a consistent
member.
Mr. Ellsworth was married in early life to Miss Abigail Wolcott,
a daughter of William Wolcott, of East Windsor. He left a family
of several sons and daughters. One of these sons is ex-governor Ellsworth of Connecticut, now living at Hartford, and a Judge of the
Supreme Court of the State, a gentleman of estimable character, and
of eminent worth and abilities.
* nte, page 219.          t American Register for 1807.
19




290             LIVES OF THE CHIEF-JUSTICES.
Judge Ellsworth was endowed with a strong practical judgment, a
vigorous common sense, a well-balanced temper, an accurate perception, and a clear and ready, if not a quick and ingenious understanding.
Though he might not be called a great statesman, he was certainly an
honest and useful one; and few of his New England cotemporaries
may claim a more honorable niche in the temple of fame. If not a
profoundly learned, he was an accurate and able lawyer. If not a
brilliant orator, he was a ready, effective, and forcible debater. If
not pre-eminently superior as a judge, he certainly brought to the
bench judicial talents of a very high order, and while there sustained
himself at all times creditably, and sometimes with well-merited distinction; —" dignified in demeanor, indefatigable in his attention to
business, patient in the trial of causes, perspicuous and convincing in
his charges to the jury."
And, above all, the moral character of Oliver Ellsworth was sustained through life without reproach, and it lifted him far above the
miserable criminations of party strife, and even beyond the breath
of suspicion itself. "In all the public stations which he ever filled
with so much reputation," says the writer of a brief notice of the
Chief-Justice at the time of his decease, " Mr. Ellsworth evinced an
inflexible integrity, the purest morality, and the most unshaken firmness and independence. In the most intemperate periods of our
national history, when the foul spirit of party, like the scythe of time,
has mowed down virtue and talents, almost without discrimination, no
person has attempted to blast the fame of Mr. Ellsworth." *
The public man who leaves behind him a record like this-a record
which even the tongue of calumny itself cannot venture to impeachneed fear nothing at the hands of posterity. And such seems to have
been the fortunate lot of Mr. Ellsworth. It is said of him, with truth
perhaps, that in his later years he exhibited a degree of warmth and
feeling in the political contests of the day scarcely consistent with the
dignified repose of age, and the high character which he sustained.
This no doubt resulted as well from the thoroughness of his own convictions as the ardor of his temper. His political opinions, whatever
they were-and of which I am neither the advocate nor apologistwere sincerely entertained, and consistently and firmly carried out.
* American Register for 1807.




OLIVER ELLSWORTH.                    291
But his political action, decided and warm though it might have
been, left no sting behind. In the language of his eulogist, " No person attempted to blast the fame of Mr. Ellsworth."
In social life, it is added, he was truly estimable,-just in his dealings, frank and sociable in his disposition, kind and obliging in his
temper; he was respected and beloved by his neighbors and acquaintances. His religious sentiments were strong and earnest. They tinged
all his thoughts in later years, and imparted to his actions a seriousness sometimes bordering upon austerity. In his youth he had been
designed for the ministry, and had actually pursued the study of theology with Rev. Dr. Bellamy, an eminent divine of Connecticut, the
year before commencing the study of the law. Toward the close of
his life his thoughts were fond of reverting to these grave subjects,
and he devoted a considerable portion of his time to the examination
and study of controversial divinity. But the seriousness of his mind
never verged toward bigotry, nor in the strictness of his life was there
a particle of asceticism. He preserved to the last his habitual liberality
of thought, warmth of social sympathy, and serenity of temper.
The epitaph which the hand of affection, of ambition, or of pride
traces upon the tomb of the departed, is too often the record of exaggerated praise or of fabulous virtue. Pointing to the dust of the
sleeper beneath, it speaks in the language of fulsome eulogy, or of
mocking sarcasm, and describes him
" Not as he was, but as he should have been."
Not so, however, the simple and modest inscription on the tomb of
Oliver Ellsworth, in the Congregational church-yard at Windsor. It
contains not a word of undeserved eulogy, not a syllable of exaggerated
praise. Dictated by affection, but chastened by a severe criticism, it
has fortunately anticipated the sober judgment of posterity: " Amiable and exemplary in all the relations of the domestic, social, and
Christian character; pre-eminently useful in all the offices he sustained; whose great talents, under the guidance of inflexible integrity,
consummate wisdom, and enlightened zeal, placed him among the first
of the illustrious statesmen who achieved the independence, and
established the Constitution of the American Republic."








JOHN MARSHALL.








JOHN MARSHALL.
IN his brilliant speech at the trial of Lord George Gordon, Mr.
Erskine speaks of the illustrious judge who, for thirty-two years, had
presided in the Court of King's Bench, as " that great and venerable
magistrate who had presided so long in this great and high tribunal,
that the oldest of us do not remember him with any other impression
than the awful form and figure of Justice!" What the celebrated
English advocate could thus appropriately say of LORD MANSFIELD,
the American lawyer, who, twenty years ago, frequented the Supreme
Court at Washington, might with equal truth and propriety have said
of the venerable judge then presiding in that august tribunal. The
long and honorable career of CHIEF-JUSTICE MARSHALL upon the bench
of the Supreme Court; the purity and dignity of his character, and
his eminent judicial services, naturally suggest a comparison with the
great English jurist. Marshall has been called the American Mansfield. Such a comparison to almost any other jurist would be no
ordinary compliment, for it implies the most exalted worth and the
highest grade of judicial ability. But, to Marshall, the compliment,
though just, cannot be deemed flattering. It is suggestive, at least,
of an imitative greatness, and a borrowed and reflected lustre, and
can add no new dignity to a character like his, of native, innate
strength, and original independent greatness. Marshall is the American Mansfield, as Washington-greater than the noblest Roman of
them all-is the American Cincinnatus. The skillful pen of some
future Plutarch may run an ingenious parallel; but that parallel soon
ends; for the antique virtue of the old Roman, though it may suggest




296            LIVES OF THE CHIEF-JUSTICES.
a comparison with Washington, cannot measure the moral elevation
of a nature like his.
" None but himself can be his parallel."
And so with the comparison between the American and the great
English judge. Gifted with a more elegant intellect, and endowed
with more profound learning and varied accomplishments-with a
dignity of character that could rise superior to the assaults of
Camden, and the bitter invective of Pitt-with a virtue whose panoply of proof could ward off the keen and glittering shafts of Junius
himself-and with those stupendous and unrivalled powers of judicial
investigation which have made his name a synonym for all that is
great in jurisprudence-with all these, Mansfield himself is not the
prototype, and does not furnish a standard by which to measure
the full capacity of Marshall. The American Chief-Justice is something more than a Mansfield. Equally endowed with every moral
as well as intellectual attribute which can adorn the highest judicial character, but with a firmer temper and a loftier courage, a
more solid and compact intellect, a more robust and rugged manhood, he stands before us, if not superior as a judge, yet greater as a
man. Erskine could say of Mansfield, not in the warm and glowing
language of eulogy, but in the sober words of truth, that he was " a
man of whom any country might be proud;" and in like manner could
Pinkney-the Erskine of the American bar-say of the venerable
Marshall, that he was " born to be the Chief-Justice of any country
into which Providence should have cast him."
I approach the task of attempting to sketch the life and judicial
services of this eminent man with much hesitation. I am sensible of
its magnitude, and of the difficulty of executing it in an acceptable manner. His judicial career alone extends through a continuous period
of thirty-five years. I believe, if not the longest, it is the most successful, the most brilliant, the most honorable of any on record. Its
history is the history of the Supreme Court through this entire period.
Its published decisions alone fill more than thirty volumes of Reports.
Nothing, therefore, but a general survey, a mere glance at the judicial
labors of Marshall will be practicable within the plan I have marked out.
Independent of this, and before coming to the Bench of the Supreme




JOHN MARSHALL.                        297
Court, he has a history of no ordinary interest-a life full of incident,
full of honorable action, and intimately interwoven with the civil and;
diplomatic history of the times. This portion of his career I approach
with the more confidence, for it is not entirely a new and untrodden
path. The copious narrative * of a brother on the bench, who, for
twenty-three years, sat by his side in the same high tribunal-a narrative drawn with a nicely discriminating pen, but all glowing in the
warm sunshine of a sincere, a generous, a profound, an almost reverential admiration-will throw light upon that path, and enable me to
pursue it with unerring certainty. This narrative of Judge Story
bears the highest marks of authenticity; most of its facts are evidently
drawn from the lips of the Chief-Justice himself, and its estimate of
Judge Marshall's judicial services and character is made with a personal knowledge derived from an intimate and unbroken friendship,
and an almost daily association of a quarter of a century. I shall
avail myself of its statements so far as it may be useful or proper to
do so, supplying from authentic historical and other sources such details of Judge Marshalls public and political career as I have been
able to obtain and the subject may require.t
The grandfather of Chief-Justice Marshall was a native of Wales.
He settled in Westmorland County, Virginia, about the year 1730,
where he married Elizabeth Markham, a native of England.      This
gentleman's eldest son, Thomas, the father of the Chief-Justice, inherited the family estate called " Forest," consisting of a few hundred
acres of poor land in Westmorland.  He removed from this county to
Fauquier, soon after attaining the age of manhood, and having intermarried with Mary Keith, by which he became connected with the
Randolphs, he seated upon a small farm at a place called Germantown,
where John Marshall was born. The great proprietor of the Northern neck of Virginia, including Fauquier County, was at that time
* A Discourse before the Suffolk Bar on the Life, Character, and Services of
Chief-Justice Marshall, by Joseph Story. October 15th, 1835.
t It may be remarked, that in 1828 Judge Story published a Sketch of ChiefJustice Marshall in the North American Review. This was subsequently retouched by him for the National Portrait Gallery, and became the basis of his more
elaborate discourse before the Suffolk Bar. The latter may be found in Story's
Miscellanies, edited by his son, and recently published.




298             LIVES OF THE CHIEF-JUSTICES.
Lord Fairfax, who gave George Washington the appointment of surveyor in the Western part of his territory. Washington employed
Thomas Marshall in the same business. They had been near neighbors from birth, associates from boyhood, and were always friends.*
Thomas Marshall, though a planter of retired habits and narrow
fortune, was a man of great energy of character and vigor of intellect.
When Washington received the command of the American armies in
the war of the Revolution, his friend and associate, Colonel Marshall,
left his estate and his large family, and embarked in the same cause.
He was placed in command of the third Virginia Regiment in the
Continental establishment, and served with distinction under the immediate orders of Washington, during the darkest and most eventful
period of the war. This regiment performed very severe duties during
the campaigns of 1776 and 1777. It was present under the orders
of Marshall at the battle of Trenton, and subsequently on the bloody
field of Brandywine, where father and son served in different regiments, and each distinguished himself by good conduct and heroism.
Though without the advantages of an early education, Colonel
Marshall was a man not only of great native endowments, but of considerable mental culture. He was a practical surveyor, adequately
acquainted with the mathematics and astronomy, and familiarly conversant with history, poetry, and general literature, of which he
possessed most of the standard works in the language; and these
were the means, which, under his fostering attention, served to complete all the early education his distinguished son received.t The
care and attention thus bestowed were neither lost nor forgotten.
Long after that son had arrived at the high station which he so long
adorned, he was accustomed, in private and familiar conversation, to
speak of his father in terms of affectionate and reverential admiration.
" My father," he would say, " was a far abler man than aly of his sons.
To him I owe the solid foundation of all my own success in life."
Such was the stock from which JOHN MARSHALL sprang. He was
born at Germantown, Virginia, on the 24th of September, 1755, and
was the eldest of a family of fifteen children. A few years after his
* Sketch of Chief-Justice Marshall, and eulogy by Horace Binney, delivered
before the Councils of Philadelphia, Sept. 24th, 1835.
t Binney's Eulogy on Chief-Justice Marshall.




JOHN MARSHALL.                      299
birth his father removed his family to the then frontier settlements,
thirty miles further west, and located in the midst of the mountains east
of the Blue Ridge, at a place called the " Hollow," in a country thinly
peopled, and destitute of schools, but remarkable for the salubrity of its
atmosphere and the picturesque beauty of its mountain scenery. It was
a place admirable for the formation of a physical constitution, and for
the development of its powers by athletic exercises and sports. Here
the son remained until his fourteenth year, laying the foundation of
that vigorous health which attended him through life, and deriving
from his father all the training in letters which he received up to that
period.
He developed even in his younger years, a remarkable aptitude for
study. At an age when most children are engaged in those simple
elementary tasks, which make up the routine of schoolboy life, he had
already acquired, we are told, a taste for reading poetry and history,
and was fond of amusing his leisure hours by a study of the old English authors. Though it may seem surprising in our day that the
library of a plain, uneducated planter, in one of the back settlements
of Virginia, before the revolution, should have been found to contain
Milton and Shakspeare, Dryden and Pope, and the principal classic
authors of the language, yet such, we are assured, was the fact, and
the mind of young Marshall was thus from boyhood enabled to familiarize itself with the thoughts of those great masters of the poetic art.
At the age of twelve he had transcribed the whole of Pope's Essay on
Man, and some of his moral essays, and had committed to memory
many of their most interesting passages.
Subsequent to this period, and before attaining the age of manhood,
he yielded to the seductive influence of the muses, so far as to suffer
his feet to stray into the flowery but hazardous paths of poetic composition. This taste for general literature, and especially for works of
the imagination and poetry, remained with Marshall through life.
Judge Story dwells upon the fact with peculiar satisfaction. He
would read, he says, with intense interest all the higher literature of
modern times, especially those departments which had been the favorite studies of his youth, and would kindle with enthusiasm at the
names of the great novelists and poets of the age. These elegant
amusements, Judge Story evidently seems to regard, with Sir James




300              LIVES OF THE CHIEF-JUSTICES.
Mackintosh, as the refuge of men of genius from   "the vulgarity and
irritation of business." The union of such a taste with that severe
logic and closeness of thought which belong to the judicial character,
he remarks, is "far less uncommon in the highest class of minds than
slight observers are apt to suppose." It must be admitted that many
illustrious examples, besides Marshall's, might be mentioned to verify
the remark. Lord Mansfield, the friend of the poet Pope, was distinguished for his classic attainments and literary tastes. When he first
came to town, according to Johnson, "he drank champagne with the
wits;" and it is not certain but that he always preferred the society
of scholars and men of genius, to that of his professional brethren.*
A more striking example still is the case of Judge Story himself.  Hie
wrote and published a poem after he came to the bar, the success of
which was probably not commensurate with its merits, or at least with
the author's expectations, for we find him some years afterwards buying up and destroying all the copies that had escaped the hands of the
trunk-makers.   It is not improbable that, if " the Power of Solitude"
had passed safely and successfully through the hands of the critics, the
Commentaries on the Constitution might not have been written. Be
this as it may, the muses still continued to bring its author " delicious
dreams," long after he attained professional eminence; and he could
never, not even after he had taken his seat by the side of Marshall on
the bench, bring himself to confess that"The dreams of Pindus and the Aonian maid
Invite no more."t
* "Mr. Pope," says Warburton, " had all the warmth of affection for this great
lawyer; and, indeed, no man ever more deserved to have a poet for his friend."
The poet handsomely compliments his friend in the well known lines ending
" Where Murray (long enough his country's pride)
Shall be no more than TuLLY or than Hyde."
See Life of Mansfield. Roscoe's British Lawyers.
t Many years after we find Story writing to his wife as follows:
"When I have nothing else to do. in order to get rid of my own sad thoughts.
I fly to poetry. I have written some lines to you since I have been here, which I
intended to send to you in this letter. But the Chief-Justice requested me to give
him a copy, and I shall retain the original until I can make one."
The lines referred to-which are somewhat didactic-are entitled "Sketches of
Character," and are published in Story's' Life and Letters."




JOHN MARSHALL.                      301
Young Marshall was sent from home at the age of fourteen, and
placed under the tuition of a clergyman residing in Westmoreland,
named Campbell, a gentleman of great respectability and learning.
Here he remained a year, having for one of his fellow-students James
Monroe, afterwards President of the United States. Returning home,
he continued his studies another year under the care of a Scotch gentleman named Thompson, just settled in the parish as pastor, and who
resided in his father's family. At the end of this year, we are told,
he had just commenced reading Horace and Livy. These two years
of classical instruction are all which the Chief-Justice ever received.
He never graduated at a college, though by his own industry and with
the aid of a grammar and dictionary, he subsequently managed to
acquire a respectable knowledge of the Latin classics, and it has been
well remarked that his attainments in learning were "nursed by the
solitary vigils of his own genius."
But these vigils were soon broken in upon by the stirring events of
the revolution.  Young Marshall was entering his eighteenth year
when the contest between the colonists and Great Britain commenced,
It found him engaged in studying the classics and in reading by turns
poetry and history, and the Commentaries of Blackstone. These pursuits, though congenial to the studious habits of his mind, were not
suffered to engross his attention to the exclusion of the exciting political topics of the day. On the contrary, he entered into the controversy with a zeal which had not yet become tempered by the sober
lessons of wisdom and experience. Nor did his zeal waste itself in
noisy and boisterous declamation, or in the mere expression of speculative opinion; for he was among the first to set the example of prompt,
energetic, and decisive action. The thrilling words of Patrick Henry" We must fight! An appeal to arms and the God of Hosts is all that
is left us!"-had scarcely fallen from the lips of the great orator. ere
we find John Marshall, laying aside his Horace and Pope, his Lyttelton and Blackstone, to acquire the rudiments of military exercise, and
actively engaged in training a militia company in the neighborhood.
His first appearance after the intelligence of the battle of Lexington
had been received, was as an officer of a militia company in Fauquier
County, and is described by a venerable kinsman who was himself an
eye-witness of the occurrences he relates; and this description is so




302             LIVES OF THE CHIEF-JUSTICES.
graphic, and so full of interest, that I cannot refrain from transcribing
it in the words in which it is written:*
" It was in May, 175. He was then a youth of nineteen. The
muster-field was some twenty miles distant from the Court house, and
in a section of the country peopled by tillers of the earth. Rumors
of the occurrences near Boston had circulated with the effect of alarm
and agitation, but without the means of ascertaining the truth, for not
a newspaper was printed nearer than Williamsburgh, nor was one
taken within the bounds of the militia company, though large. The
Captain had called the company together and was expected to attend,
but did not. John Marshall had been appointed a lieutenant to it.
His father had formerly commanded it. Soon after Lieutenant Marshall's appearance on the ground, those who knew him clustered about
him to greet him, others from curiosity, and to hear the news.
" He proceeded to inform the company that the captain would not
be there, and that he had been appointed lieutenant instead of a better;-that he had come to meet them as fellow-soldiers who were
likely to be called on to defend their country, and their own rights
and liberties, invaded by the British;-that there had been a battle at
Lexington, in Massachusetts, between the British and Americans, in
which the Americans were victorious, but that more fighting was expected;-that soldiers were called for, and that it was time to brighten
their fire-arms and learn to use them in the field;-and that if they
would fall into a single line he would show them the new manual exercise, for which purpose he had brought his gun-bringing it up to his
shoulder. The sergeants put the men in line, and their fugleman presented himself in front to the right."
The same excellent authority goes on to describe the personal appearance and figure of Marshall, and the simple and familiar manner
of his intercourse with the men whom he had undertaken to instruct
in the " new manual exercise." The picture is striking and graphic;
I shall hereafter compare it with another, drawn by a different hand,
of the same John Marshall as he appeared, not as lieutenant of militia,
but as Chief-Justice of the United States:
" He was about six feet high, straight and rather slender, of dark
complexion-showing little, if any, rosy red, yet good health, the out* From the Sketch of Marshall by Mr. Binney.




JOHN MARSHALL.                     303
line of the face nearly a circle, and within that eyes dark to blackness,
strong and penetrating, beaming with intelligence and good nature;
an upright forehead, rather low, was terminated in a horizontal line
by a mass of raven black hair of unusual thickness and strength. The
features of the face were in harmony with this outline, and the temples
fully developed. The result of this combination was interesting and
very agreeable. The body and limbs indicated agility rather than
strength, in which, however, he was by no means deficient. He wore
a purple or pale blue hunting-shirt, and trowsers of the same material
fringed with white. A round black hat, mounted with the buck's tail
for a cockade, crowned the figure and the man.
"He went through the manual exercise by word and motion, deliberately pronounced and performed in presence of the company, before
he required the men to imitate him; and then proceeded to exercise them with the most perfect temper. Never did man possess a
temper more happy, or if otherwise, more subdued or better disciplined.
"After a few lessons the company were dismissed, and informed
that if they wished to hear more about the war, and would form a
circle around him, he would tell them what he understood about it.
The circle was formed and he addressed the company for something
like an hour. I remember, for I was near him, that he spoke, at the
close of his speech, of the minute battalion about to be raised, and
said he was going into it, and expected to be joined by many of his
hearers. He then challenged an acquaintance to a game of quoits,
and they closed the day with foot races, and other athletic exercises,
at which there was no betting. He had walked ten miles to the muster field, and returned the same distance on foot to his father's house,
at Oak Hill, where he arrived a little after sunset."
Such is the life-like picture which a cotcmporary and kinsman has
left of the Chief-Justice, as he appeared upon the threshhold of early
manhood. One cannot help being struck with its truthfulness and
simplicity;-a walk of ten miles from Oak Hill in a blue hunting-shirt
and buck tail cockade-a frank, friendly, and hearty greeting with his
comrades-a drill in the " manual exercise"-a familiar talk about the
war-foot races, and a game at quoits at which " there was no betting," make up the prominent points of the picture. And it may here




304             LIVES OF THE CHIEF-JUSTICES.
be added, that this admirable simplicity of manners-nay, the very
tastes and habits of his early manhood, remained with him through
life. Thus he never lost his fondness for those field sports and athletic
exercises, which in youth laid the foundation of that robust health which
he continued to enjoy to a green old age; nor did he disdain his favorite game of quoits, even when he had been placed at the head of the
Federal Judiciary. The Chief-Justice of the United States never
ceased to be John Marshall.
Soon after this the Virginia Convention resolved to raise two regiments for the public defence. Marshall promptly enrolled himself in
the "minute battalion," of which he had spoken, and in the summer
of 1775 received the commission of lieutenant in one of the companies
comprising it. The battalion to which he belonged was mustered into
service on the first of September of the same year, and a few days
after was ordered to march to the lower country, to defend it against
a small predatory force under Lord Dunmore, the royal Governor of
Virginia. This was his first active service, and the particulars of the
expedition, from his own observation, are given by him in his life of
Washington. Lord Dunmore, it appears, had proclaimed martial law
in Virginia, and early in November had succeeded in collecting such a
force of tories and negroes as to give him entire ascendancy in the
southern part of the colony. Hearing of these transactions, the Virginia Convention ordered Colonel Woodford, with a regiment of regulars and about two hundred minute men, to advance to the defence of
the inhabitants. Dunmore intrenched himself on the Elizabeth River,
near the Great Bridge, where he erected a fort on a small piece of
firm ground, surrounded by a marsh, which was accessible only by a
long causeway. Being without artillery, the Virginians were unable
to make any attempt upon these works; they therefore stationed
themselves at a village within cannon-shot of the enemy, and erected a
breast-work at the extremity of the causeway. A few days passed
without any action on either side. The royal Governor at length
resolved to storm the works of the provincials. About sunrise on the
9th of December, Captain Fordyce, at the head of about sixty British
grenadiers, advanced along the causeway.  With fixed bayonets
he entered the breast-work. The alarm, says Marshall, was immediately given; and, as is the practice with raw troops, the bravest




JOHN MARSHALL.                      305
rushed to the works, where, regardless of order, they kept up a
heavy fire on the front of the British column.  Captain Fordyce,
though received so warmly in front, and taken in flank by a party
posted on a small eminence on his right, marched up with great intrepidity, until he fell dead within a few steps of the breast-work. The
column immediately broke and retreated, but being covered by the
artillery of the fort, was not pursued. In this first battle on the soil
of Virginia-the Lexington it may be called of the old Commonwealth-the future Chief-Justice took an active part. Even at this
distant day the imagination can paint the tall form of the young provincial lieutenant-not as it appeared more than half a century later,
in its dignified repose on the bench, robed in the judicial gown and
slightly bent with the weight of years-but, animated with the enthusiasm of the soldier, erect, vigorous, and athletic, rising above those
frail breast-works, and urging on the " bravest of the troops" to defend their position to the last against the assault of the enemy. The
result of the attack was disastrous to the British. Every grenadier, it
is said, was either killed or wounded, while the Americans did not lose
a single man. Lord Dunmore found himself obliged to evacuate the
fort the following night and take refuge on board his vessels, and the
provincials proceeded in triumph to take possession of Norfolk. The
city was soon after cannonaded by the British ships and set on fire by
a strong detachment of the enemy, landing under cover of the cannon
of their vessels, and was afterwards entirely destroyed by order of the
Committee of Safety, and the place evacuated.
As the war became more serious, the Virginia Convention determined to increase the number of their regiments from two to eleven,
which were afterwards taken into the continental service. In July,
1776, Marshall was appointed first lieutenant in one of these Continental regiments. His father, Colonel Marshall, commanded the third
regiment, which was with the army under Washington, in the campaign of 176, as I have already mentioned, and performed very severe
duty during the retreat through New Jersey.*  After the close of this
disastrous campaign, when the American army, broken and dispirited,
had retired into winter-quarters in New Jersey, and the American
* President Monroe held the commission of- Lieutenant in this regiment, and was
wounded at the battle of Trenton.
20




306            LIVES OF THE CHIEF-JUSTICES.
cause, notwithstanding the brilliant successes at Trenton and Princeton, seemed almost hopeless, the regiment to which Lieutenant Marshall was attached was ordered to the North, to reinforce the Commander-in-chief in New Jersey. Marshall was soon after promoted
to the rank of captain, and was at the head of his company when the
army, the encampment at Morristown being broken up, took the field
for the campaign of 177f. Though the new recruits had come in,
and the total returns of the army at this time, exclusive of cavalry
and artillery, amounted to eight thousand three hundred and seventyeight men, yet of this number he states two thousand were sick, and
the effective force of the Americans, rank and file, was something less
than six thousand men. Of these troops more than one-half were unacquainted with the first rudiments of military duty and had never
looked an enemy in the face, and yet with this insufficient force Washington took the field and attempted to make head against the enemy.
For a month or two no decisive movement was made. Washington
entrenched himself at Middlebrook, between the British General
Howe and Philadelphia, closely watching every movement of the enemy, and prepared to dispute with him the possession of the American
capital. In the mean time fresh recruits joined the army, its discipline
was increased, its materiel augmented, and in a short time, though not
nearly equal in point of effective strength to the British, it was in a
condition to manceuvre, with some prospect of success, in presence of
the enemy. The British General Howe, abandoning his design of
forcing his way to Philadelphia by land, about the middle of July embarked at New York a force of eighteen thousand men, the destination of which was not at first known. On the 30th July the British
fleet was seen off the capes of the Delaware, when orders were immediately given to the various detachments of the Amerie-n army to
assemble in the neighborhood of Philadelphia. Genercl Howe having relinquished his design of attempting to carry the British fleet up
the Delaware bay and river, entered the Chesapeake, which owing to
unfavorable winds he did not reach till the 16th of August; and having sailed up that bay and entered Elk river, he landed his forces at
the ferry on the 25th. The day before this landing the American army
marched through Philadelphia and proceeded towards the Brandywine.  Being united with the Pennsylvania militia under General




JOHN MARSHALL.                      307
Armstrong, their numbers amounted to fifteen thousand; but the
effective force was far below this, and did not exceed, according to
Marshall's own statement, eleven thousand men. Marshall's company,
it appears, was attached to a corps of light infantry formed for the occasion, the command of which was given to General Maxwell. This
corps was advanced to Iron Hill, about three miles in front of White
Clay Creek. The opportunity was thus given to Captain Marshall of
engaging in the first skirmish which preceded the battle of Brandywine. A column of British, led by Lord Cornwallis, moving forward
to join Knyphausen, fell in with and attacked Maxwell, who retreated
over White Creek with the loss of about forty men. Meanwhile the
American army crossed the Brandywine and took a strong position
behind that river at Chadd's Ford, determined at this place to dispute
with the enemy the possession of Philadelphia. General Maxwell's
corps, to which Marshall belonged, was advanced in front and placed
advantageously on the hills south of the river, on the road leading over
the Ford.* In this position, on the 11th September, about daybreak,
the whole British army was seen advancing on the direct road leading
over Chadd's Ford. The Americans were immediately under arms,
and skirmishing commenced between the advanced parties, though
without much loss on either side. By 10 o'clock Maxwell was obliged
to give way and retreat over the Brandywine, below the Ford.
Knyphausen paraded on the heights lately occupied by Maxwell, and
both armies prepared for battle. The American troops were in good
spirits, and even eager for action. This seems evident from the relation given by Marshall, in his Life of Washington, of a skirmish in
which he himself was engaged. The British were divided from Maxwell's corps only by a skirt of woods and the river; and it seems that
so great was the ardor of the Americans, that small parties would
leave their posts, and crossing over the stream, keep up a scattering
fire against the enemy. One of these parties, commanded by Captains Waggoner and Porterfield, engaged the British flank guard
closely, killed a captain with ten or fifteen privates, drove them out of
the wood, and were on the point of taking a field-piece. The sharpness of the skirmish soon drew a large body of the British to that
quarter, and the Americans were again driven over the Brandywine.
* Marshall's Life of Washington, Vol. I. p. 155.




308             LIVES OF THE CHIEF-JUSTICES.
The characteristic modesty of the author causes him to omit any mention of his own share in the engagement, and he merely adds in a note,
that he was " an eye-witness of this skirmish."*
The battle of Brandywine was fought on the 10th September, 117.
The result was not decisive, though the Americans were defeated and
driven from their position. They sustained a loss of nearly a thousand
men killed and wounded, besides some prisoners. The British loss was
about half that number. The same night Washington retreated in
good order to Chester, and the next day to Philadelphia. Ill this
hotly contested action the Virginia troops behaved with great gallantry. The elder Marshall, in command of the third regiment, greatly
distinguished himself. He was stationed in a wood on the right, and
though attacked by superior numbers, maintained his position without
losing an inch of ground, until his ammunition was nearly exhausted
and one-third of his soldiers killed or wounded. Colonel Marshall,
whose horse had received two balls, then retired in good order to
resume his position on the right of his division, but found it had
already retreated.t
That the victory of General Howe' if it may be called such, was
not decisive, is evident from the fact that four days afterwards Washington was on the Lancaster road in pursuit of the British General, for
the purpose of bringing him to another engagement. On the 16th the
two armies again met, and after a brief skirmish were separated by a
heavy storm. Soon after Philadelphia fell into the hands of the
enemy.
The battle of Germantown followed-a battle skilfully planned and
gallantly contested, but like the battle of Brandywine, indecisive in its
results. Captain Marshall was in this engagement, his company being
attached to Woodford's brigade, which was stationed in the left wing
immediately opposite the British right. This wing coming into action,
gallantly attacked the British light infantry, and after a sharp contest
drove it from the ground. While rapidly pursuing the flying enemy,
the brigade to which Marshall belonged was arrested by a destructive
fire of musketry from a large stone house into which some companies of
British infantry had thrown themselves. Unable to return tlis fire with
effect, the brigade was drawn off to the left by its commandilng otl* Marshall's Life of Washington, Vol. I., p. 156.  f Ibid. Vol. I., p. 158.




JOHN MARSHALL.                      309
cers, and some field-pieces were brought up to play upon the house,
but were found too light for effective service. The advance of the
brigade was of course retarded, and the line broken, although one
division pressed forward with such eagerness that it drove back part
of the British right wing, and made a considerable number of prisoners.* This untoward accident, in conjunction with some other unforseen and unfortunate occurrences, snatched the victory from the hands
of the Americans when it seemed to be already within their grasp.
Washington found himself compelled to draw off his army, which he did
in good order. The loss on both sides was about the same as in
the former battle at the Brandywine. The Americans retreated a few
miles from the field, but meeting with a reinforcement large enough to
repair their losses they again advanced towards Philadelphia and encamped on Skippach Creek, and soon after took a strong position at
White Marsh.
It was while the Americans lay encamped at White Marsh, and
just before the army went into winter-quarters at Valley Forge, that
General Howe marched out of Philadelphia with his whole army, with
the design of forcing Washington from his position and driving him
beyond the mountains. The attack, however, was never made. Some
skirmishing ensued between the armies, and at one time a general action seemed inevitable. Upon this occasion Marshall alludes to the
courage and spirit that were infused into the troops by the presence of
Washington, who rode through every brigade, delivering his orders
relative to the battle in person, exhorting the soldiers to rely principally on the bayonet, and animating them to a vigorous performance
of their duty. It may well be imagined that such words and such a
presence, were to the timid and wavering, powerful incentives to duty.
But they were not necessary to inspire the courage or animate the
zeal of the young captain of Virginia continentals. That zeal had
been already proved and that courage tried. No officer of his grade
in the service stood higher. He was deservedly esteemed and beloved
by his comrades. His acquaintance with the officers of the army was
extensive, more extensive, perhaps, because he was called upon frequently to act as Deputy Judge Advocate, in which position he acquired deserved reputation and influence. The feeling of affection
* I Marshall's Washington, p. 169.




310             LIVES OF THE CHIEF-JUSTICES.
which the officers of the army entertained for their young comrade,
continued unabated to the last. Years afterwards it was a subject
they delighted to speak of. " I myself," says Judge Story, " have often
heard him spoken of by some of these veterans in terms of the highest
praise. In an especial manner, the Revolutionary officers of the Virginia line appeared almost to idolize him, as an old friend and companion in arms, enjoying their fullest confidence."  His acquaintance extended to officers of superior grades, and other regiments as well as
his own. His discharge of the duties of Judge Advocate brought
him in familiar intercourse with Col. Hamilton, and about the same
time he made the personal acquaintance of that great man who then
commanded in chief the American army, and for whose personal character, it is unnecessary to say, he never ceased to entertain the most
profound reverence.
Captain Marshall went into winter-quarters with the army at Valley
Forge, and shared the privations and sufferings of the troops during
the whole of that terrible and ever memorable season. A cotemporary and eye-witness describes him as he appeared at this time among
his brother officers of the regiment to which he belonged:-" When
the writer of this article first saw him," he remarks, " he held the
commission of captain in that regiment. It was in the trying severe
winter of 1777-8, a few months after the disastrous battles of Brandywine and Germantown had tested his firmness, hardihood and heroism. The spot where we acquired our earliest information of him, was
the famous hutted encampment at Valley Forge, about thirty miles from
Philadelphia. By his appearance then we supposed him about twentytwo or twenty-three years of age. Even so early in life we recollect
that he appeared to us primus inter pares, for amidst the many commissioned officers he was discriminated for superior intelligence. Our
informant, Col. Ball, of another regiment in the same line, represented
him as a young man, not only brave, but signally intelligent. Indeed,
all those who intimately knew him, affirmed that his capacity was held
in such estimation by many of his brother officers, that in many disputes of a certain description, he was constantly chosen arbiter; and
that officers, irritated by differences, or animated by debate, often submitted the contested points to his judgment, which being given in writ



JOHN MARSIALL.                      311
ing, and accompanied, as it commonly was, by sound reasons in support
of his decision, obtained general acquiescence." *
Marshall remained at the head of his company in the army,
under the immediate command of Washington, during the two
following campaigns, of 1178 and 1779. He was present, and participated in the celebrated battle of Monmouth, and at the expiration of that campaign, went with the army into winter-quarters. The
following year he was again in the field, and formed one of the covering party detailed to sustain General Wayne in his daring, brilliant,
and successful assault upon Stony Point. He was also concerned in
the enterprise so admirably planned and successfully executed by Major Lee against the British post at Powles Hook.t
When the army went into winter-quarters at the close of the campaign of 1779, there being a superabundance of officers belonging to
the Virginia line-the term of enlistment of most of the soldiers having expired-Marshall and many of his brother officers were directed
to return home in order to take charge of such men as the State Legislature might raise for their command. In this interval of comparative repose and leisure, the first that he had known since the breaking
out of the war, he applied himself with renewed ardor to a severe
course of study. Chancellor Wythe was at that time professor of law
in the College of William and Mary, and Mr. Madison, afterwards
Bishop of Virginia, the President of that College. Marshall now
found an opportunity to avail himself of the instructions of these eminent men, and attended a course of law lectures by the former, and a
course of lectures oh natural philosophy by the latter. He left the
college in the summer vacation of 1780, and obtained a license to
practice law.
But the license of the young lawyer availed him very little at this
period. It was a time when men might fully realize the truth of the
maxim, inter arma silent leges. The invasion of Virginia soon after shut
up the courts of law, and they were not opened again until after the capitulation of Cornwallis. In the mean time Marshall returned to the
army, and remained in the service under command of Baron Steuben
* See North American Review, January, 1828, p. 8.
t 1 Marshall's Life of Washington, pp. 311, 316.




312             LIVES OF THE CHIEF-JUSTICES.
until after the termination of Arnold's invasion.* There being still a
redundance of officers in the Virginia line, he then resigned his commission, and thenceforth applied himself with unremitted diligence to
the study of his future profession.
Immediately on the close of hostilities in Virginia, by the capture
of Cornwallis, Mr. Marshall commenced the practice of the law, and
soon rose to distinction at the bar. His placidity, moderation, and
calmness, says one of his eulogists, irresistibly won the esteem of men
and invited them to intercourse with him;-his benevolent heart and
his serene, and at times joyous temper, made him the cherished companion of his friends;-his candor and integrity attracted the confidence of the bar;-and that extraordinary comprehension and grasp
of mind, by which difficulties were seized and overcome without effort
or parade, commanded the attention and respect of the courts of
justice. This is the traditionary account of the first professional years
of John Marshall. He accordingly rose rapidly to distinction, and to
a distinction which nobody envied, because he seemed neither to wish
it, nor to be conscious of it himself.t
Marshall, it is said, attributed his early advancement and lucrative
practice, not so much to his own merit3, as to his extensive acquaintance with the officers of the army, who, by the termination of hostilities, had returned to their families, and were scattered over the
States. Discerning friends, however, have not failed to trace it to
what is doubtless its true source, namely, his own great talents and
exertions.
Mr. Marshall's first appearance in political life was in the Virginia
Legislature, of which he was elected a member in the spring of 1 82.
The following autumn he was chosen a member of the State Executive Council. This latter position he resigned in the spring of 1784,
in order to devote himself more exclusively to his professional duties.
HIe does not appear, however, to have found *a seat in the Legislature
incompatible with these duties, as we find him elected a member of
that body from his native County of Fauquier, immediately after
* On the 10th of January, 1781, he was with the army near Hood's, when the
British troops, on retiring to Portsmouth, sustained, in an ambuscade by the
Americans, the only loss which on their part attended that incursion.
t Binney's Eulogy on Marshall.




JOHN MARSHALL.                      313
resigning his seat in the Council. On the 3d of January, 1783, he
married Miss Mary Willis Ambler, daughter of the then State Treasurer, to whom he had become attached before leaving the army.
This was one of three events of his life which alone he deemed worthy
of commemoration in the simple inscription, which two days before his
death, his own hand wrote to be placed on his tomb-his birth, his
marriage, and his death! With this lady he lived nearly fifty years,
in the most devoted conjugal affection, and her death, says Judge
Story, cast a gloom over his thoughts from which he never recovered.
About the same time Mr. Marshall took up his permanent residence
in the city of Richmond, and was soon extensively engaged in the
practice of the law. He also engaged with interest and ardor in the
political questions of the day, particularly those in which his own
State was more immediately interested. He was continued, by repeated elections, a member of the State Legislature during most of this
period, up to the final adoption of the Constitution. Here he came in
contact with such men as Henry, Lee, Tyler, Tazewell and Madison;
the latter gentleman warmly sustained him in his enlightened advocacy
of a union between the states and the establishment of an efficient
federal government. Though at a subsequent period Marshall and
Madison widely differed in their political views and constitutional constructions, yet the respect and friendship with which they mutually
regarded each other, were continued to the close of their lives.
" Nothing, indeed, could be more touching to an ingenuous mind,"
remarks Judge Story, " than to hear from their lips, in their latter
years, expressions of mutual respect and confidence; or to witness
their earnest testimony to the talents, the virtues, and the services of
each other."
The questions occupying the attention of the Virginia Legislature
during this period, were of the gravest character.  Besides those
which may be considered as more especially belonging to the internal
affairs of the State, such as the administration of justice, the collection
of taxes, the regulation of the currency, and the like, other questions relative to the external and federal relations of the State, were constantly
brought up for discussion. And rising above and extending far beyond all in its magnitude and greatness, at the very threshold of these
discussions, stood the formidable question, whether the union of the




314             LIVES OF THE CHIEF-JUSTICES.
States should or should not be preserved; and if preserved, under
what form of confederation or government. Deeply interesting to the
people of Virginia as was the discussion of all these questions, it is
not necessary for the purposes of this sketch to inquire what particular part was sustained in them by Mr. Marshall; and I shall
merely allude to the question last mentioned, for the purpose of
indicating generally the nature of his views and opinions at this
time.
The insufficiency of the old articles of confederation was seen at
an early period in Virginia, as elsewhere, and discerning men were not
slow to perceive that the cumbrous and unwieldy mechanism must soon
fall to pieces. This being the case, the question occurred whether any
further union should be attempted, and it is unnecessary to say that it
was discussed in Virginia, as in other States, with no little warmth,
and that it had its opponents as well as its advocates. Marshall
was one of those who, in the Legislature, warmly seconded Madison,
and the other friends of an effective federal union. His course was
precisely such as might have been anticipated. And though taken
under the enthusiastic impulses of youth, and, as he himself thought,
governed in a great degree by circumstances, it was one which his
mature and deliberate judgment in after years fully approved. Long
afterwards, in a letter to a friend, he frankly intimates the reasons
which he supposes influenced his early opinions on this subject:" When I recollect the wild and enthusiastic notions with which my
political opinions of that day were tinctured, I am disposed to ascribe
my devotion to the Union, and to a government competent to its preservation, at least as much to casual circumstances as to judgment. I
had grown up at a time when the love of the Union, and the resistance to the claims of Great Britain, were the inseparable inmates of
the same bosom; when patriotism and a strong fellow-feeling with our
suffering fellow-citizens of Boston were identical; when the maxim'United we stand, divided we fall,' was the maxim of every orthodox
American. And I had imbibed these sentiments. so thoroughly that
they constituted a part of my being. I carried them with me into the
army, where I found myself associated with brave men, from different
states, who were risking life and everything valuable, in a common
cause, believed by all to be most precious, and where I was confirmed




JOHN MARSHALL.                     315
in the habit of considering America as my country, and Congress as
my government."
And in the same letter he adds: "My immediate entrance into
the State Legislature opened to my view the causes which had been
chiefly instrumental in augmenting those sufferings (of the army);
and 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 general government."
With these views Marshall firmly arrayed himself in the Legislature by the side of those whose efforts tended to secure the great
object in view, a permanent and efficient union of the States under a
federal government. He was not himself a member of the Convention which framed the Constitution; but the same year in which that
body met, he was again elected to the Virginia house of delegates,
from the county of Henrico, there to sustain and defend, so far as was
requisite, and until the time arrived for more efficient action, the
policy and measures of the Convention.
When the Constitution was submitted to the States for their decision, Marshall, who warmly advocated its adoption, became a candidate for election to the Virginia Convention. The majority of the
voters in the county where he resided were opposed to the Constitution. He was assured that all opposition would be withdrawn if he
would pledge himself to vote against its adoption, otherwise he would
be strenuously resisted. Marshall, of course, refused the pledge, and
determined to encounter the opposition. But no opposition could
withstand his personal popularity and the high estimate in which his
character and virtues were held in the community; and though the
question at issue naturally excited the utmost warmth of feeling, yet,
as he remarks himself, " parties had not yet become so bitter as to extinguish. the private affections." The result of the canvass was his
election by a triumphant majority.
The Virginia Convention assembled at Richmond on the 2d of June,
1 88. EDWARD PENDLETON was chosen its president. The debates of
this body have been preserved, and are published.*  Though said to
be loose and imperfect, and by no means to do full justice to the elo* They comprise the entire third volume of Elliott's Debates on the Federal
Constitution.




316              LIVES OF THE CHIIEF-JUSTICES.
quence and ability of the respective speakers, yet they are still, even
in our day, worthy of careful perusal by the student of our constitutional history. The first orators and the ablest lawyers in Virginiathe greatest names in her civil and political annals-are found among
the members of this body. Mr. NICHOLAS led off in these discussions
in favor of the Constitution.  PATRICK HENRY followed, in warm  and
earnest opposition.  Gov. RANDOLPH succeeded MR. HENRY, and though
he had refused to sign the instrument in the Federal Convention, he now
brought to its support the timely aid of his vigorous and powerful
eloquence;* and GEORGE MASON followed in a strong and searching
argument on the other side. The debate thus opened was continued
from day to day, with increased animation and interest, till the close of
the Convention. By the side of Nicholas and Randolph were ranged
Madison, Pendleton, Wythe, Innis, Blair, Bushrod Washington, and
Marshall; and with Henry and Mason on the other side, stood
Bland, Grayson, Tyler, and Monroe.
It appears from  the debates that Mr. Marshall delivered three
speeches during the Convention. The first of these was in reply to
Patrick Henry, in which he enters upon a full and somewhat general
discussion of the proposed plan of government, and very ably vindicates it against the various objections raised and urged with so much
force and eloquence by that celebrated orator. The second is more
brief, and relates exclusively to the organization of the militia; and
the third is a clear, lucid, and powerful argument in favor of the judiciary clause of the Constitution, and in reply to Mr. George Mason.
I cannot refrain from transcribing a single passage in this admirable
speech, in reference to that celebrated constitutional question, which
* Mr. Randolph's last words in the Convention are reported as follows:-"The
suffrage which I shall give in favor of the Constitution will be ascribed by malice
to motives unknown to my breast. But although for every other act of my life I
shall seek refuge in the mercy of God-for this I request his justice only. Lest,
however, some future annalist should, in the spirit of party vengeance, deign to
mention my name, let him recite these truths-that I went to the Federal Convention with the strongest affection for the Union; that I acted there in full conformity with that affection; that I refused to subscribe, because I had, as I still
have, objections to the Constitution, and wished a free inquiry into its merits;
and that the accession of eight States reduced our deliberations to the single question of Union or no Union."-3 Elliott's Debates, 587.




JOHN   MARSHALL.                     317
was discussed in Chief-Justice Jay's time, in the case of Chisholm vs.
The State of Georgia, namely, whether a State was liable to answer
in the Federal courts at the suit of a citizen of another State. The
wide difference between the views of Marshall and those subsequently
advanced by Jay and his associates, including Justice Blair, who was
himself a member of the Convention, is worthy of notice:"With respect to disputes between a State and the citizens of
another State, its jurisdiction has been decried with usual 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 Legislature of Virginia is a party,
and yet the State is not sued? 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. I contend this construction is warranted by the words. But say they, there
will be a 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 session of the Convention lasted twenty-five days. From its
commencement to its close it was attended by crowds of citizens of all
ages and conditions, attracted both by the intense interest everywhere felt in the subject under discussion, and by the splendid displays
of eloquence which it elicited. Wirt's glowing and animated description of this distinguished body-the most illustrious perhaps and
ablest that ever assembled in Virginia-is no doubt familiar to the
reader. Still I am tempted to embellish my own imperfect sketch
with a touch of the warm and rich coloring which never failed to follow the pencil which that master hand guided over the canvass.
" Day after day, from morning till night, the galleries of the house
were continually filled with an anxious crowd, who forgot the incon



318            LIVES OF THE CHIEF-JUSTICES.
venience of their situation in the excess of their enjoyment; and, far
from giving any interruption to the course of the debate, increased its
interest and solemnity by their silence and attention. No bustle, no
motion, no sound, was heard among them, save only a slight movement, when some new speaker arose, whom they were all eager to see
as well as to hear; or when some master-stroke of eloquence shot
thrilling along their nerves, and extorted an involuntary and inarticulate murmur. Day after day was this banquet of the mind and of
the heart spread before them, with a delicacy and variety which could
never cloy. There every taste might find its peculiar gratificationthe man of wit-the Inan of feeling-the critic-the philosopher-the
historian-the metaphysician —the lover of logic-the admirer of
rhetoric-any man who had an eye for the beauty of action or an ear
for the harmony of sound, or a soul for the charms of poetic fancyin short every one, who could see, or hear, or feel, or understand,
might find in the wanton profusion and prodigality of that Attic feast,
some delicacy adapted to his peculiar taste. Every mode of attack
and defence of which the human mind is capable, in decorous debate
-every species of weapon and armor, offensive and defensive, that
could be used with advantage, from the Roman javelin to the Parthian arrow, from the cloud of Eneas to the shield of Achilles-all
that could be accomplished by human strength, and almost more than
human activity, was seen exhibited on that celebrated floor."*
At the close of the debates in the Virginia Convention, it was
known that eight States had already ratified the Constitution. The
accession of Virginia was all that was now required in order to complete the confederacy and put the new government into operation.
Yet, notwithstanding the great ability and influence of the friends of
the Constitution in the Convention, it had a narrow escape on its final
passage. A resolution, that a bill of rights, together with amendments
to its most objectionable parts should be submitted, previous to its
ratification, to a convention of the States, was negatived by a bare
majority of eight votes; and, on the final question of ratification, the
vote stood 89 to 79. Mr. Marshall was appointed on the committee
to prepare a form of ratification. He was also a member of the committee, of which Chancellor Wythe was chairman, appointed to pre* Life of Patrick Henry, p. 311.




JOHN MARSHALL.                      319
pare and report a bill of rights and such amendments as were deemed
necessary to be recommended to the consideration of Congress. The
report was made on the 27th July, the bill of rights and the amendments proposed by the committee adopted, and the Convention thereupon adjourned sine die. On that day the Constitution received its
vitality and the American Republic the charter of its liberties.
Mr. Marshall continued a member of the State Legislature at intervals for some years after the adoption of the Federal Constitution.
During this period nearly all those important measures consequent
upon the organization of the government which I have alluded to in
another part of this volume,* were discussed in the Virginia Legislature with great warmth and freedom. It is unnecessary to say that
Marshall mingled prominently in these debates, and adopting a large
and liberal view of public policy, cordially and efficiently co-operated,
so far as his position enabled him to do, in sustaining, the national
government in what he conceived to be its true spirit. It was here,
perhaps, that he first applied himself to a close and critical study of
the constitutional compact, and his mind became settled in those convictions and views of constitutional construction which his subsequent
legal opinions so clearly elucidated. The opposition to the adoption
of the Constitution in Virginia, as elsewhere, had been mainly upon
the ground of its strong tendency to consolidation, and to destroy the
separate existence and independence of the States. It therefore manifested itself at an early period in a jealous vigilance against any construction not warranted by the strict terms of the instrument itself,
and insisted upon the closest abridgement of its powers. On the
other hand, most of those, who, like Marshall, had been warm and
ardent friends of an efficient federal union from the beginning, were in
favor of giving full effect to all the necessary measures of government
by a more liberal construction. Madison, it is well known, adopted
the former of these opinions; and Marshall, in a few years, found
himself in an antagonistic position to this gentleman, with whom he had
stood side by side fighting the battle of the Constitution on the floor
of the Virginia Convention. In common with the great mass of the
Federal party, he did not yield his assent to Madison's famous resolution of 1798; much less to those said to have been drafted by Jeffer* Sketch of Ellsworth, ante, pages 240-243.




320             LIVES OF THE CHIEF-JUSTICES.
son and known by the name of the Kentucky resolutions. And these
opinions he entertained even at the early period of which I am now
speaking. Thus, when the funding system of Hamilton was attacked
with great acrimony in the Virginia Legislature, and the constitutionality of that part of it assuming the State debts denied, Marshall
came to its support, and with his accustomed clearness, vigor and
force undertook to demonstrate its constitutionality. In the same
spirit he examined other constitutional questions and measures of public policy, and, his ideas once matured and his convictions settled, he
rarely failed to silence, if he did not convince his adversaries.  In
powers of clear, calm, logical discussion, he stood unrivalled, and
was confessedly one of the leaders of the Virginia Legislature.
But it was to the labors of his profession during these years that he
devoted the best portion of his intellect and his energies. Nothing
was suffered to divert his attention, or turn him from the steady
pursuit of this object. Indeed in 1792, he retired from the Legislature altogether, for the purpose of devoting himself more exclusively
to the bar. His professional reputation at this period was very high.
He found himself engaged in all the leading causes in the State and
national tribunals; and by a course of profound study and culture, of
severe mental training, and of successful practice at the bar, he gradually matured and developed those great powers which shed lustre
around that higher and more honorable career on the bench upon
which he was about to enter.
Some idea of the extent of Marshall's practice, as well as of his
eminent ability in forensic argument, may be obtained by glancing at
the Virginia reports of this period, especially the two volumes by
Washington of cases adjudged in the Courts of Appeals. The latter
of these volumes in particular, embracing a period of three years, from
1_794 to 179, is replete with the learning, and may well be considered
a proud monument to the professional fame of the future Chief-Justice. His name is found as counsel, on one side or the other, in the
great majority of the cases reported-indeed it may be added in
every case of any degree of importance.  However high might be
the reputation of a counsel engaged in a cause of great difficulty,
or of great magnitude, he considered it no disparagement to call to
his aid the ponderous strength, and avail himself of the close logic of




JOHN MARSHALL.                     321
Marshall. And this, it must be remembered, was at a day, when to
occupy a front rank amid such an array as the bar of Virginia then
presented, was no empty honor. Patrick Henry indeed was about
passing away; but that bar could boast of such bright ornaments as
Campbell, and Lee, and Ronald, and Wickham, and Warden, and
Baker, and Randolph, and Washington-a bar possessing every element of forensic greatness-learning, eloquence, intellect, culture-all
that can adorn and dignify the professional mind. And above them
all Marshall towered a Colossus in intellectual strength-or, perhaps,
if the figure be not too bold, a majestic pillar in this temple of Themis,
standing out like the massive Doric shaft amid a clustre of luxuriant
Corinthian columns,
" Nobly plain and unadorned,"
the emblem of simplicity combined with majestic strength, and the
type of a primeval age.
The professional reader will see, by these reports, what was the
character of the more important cases which enlisted the abilities of
Marshall while an advocate at the bar. He will see, too, how wide
and deep the common law had struck its roots into the soil of Virginia, nor will he fail to admire the research, the learning, the ingenuity, and the professional acumen which distinguished not only the
arguments at bar, but the judgments pronounced from the bench in
the highest tribunal of-the State. The most abstruse and perplexing
questions of the law of real property were involved in some of these
cases, and in their discussion the whole field of common-law learning
was explored, and the subtlest distinctions, the most ingenious analogies, and the most recondite principles were often brought to bear
upon the argument.   Nor were the Virginia lawyers, and even
Marshall himself, unskilled in the use of those keen and glittering
weapons of law logic, which, like the sword of Saladin, are formidable
mainly from the dexterity with which they are wielded. But these
were never the favorite weapons of Marshall. He preferred the ponderous battle-axe, to the Turkish scimitar; he could apply with admirable felicity, but he never-delighted in discussing, a mere technical
principle; if he did, it was with him technical in the best and highest
sense of the term-a something which pertained to the ars juridicanot a mere verbal distinction or quibble of logic.
21




322             LIVES OF THE CHIEF-JUSTICES.
Questions like these, however, were not of frequent occurrence.
Indeed, their discussion would seem to have been out of place in that
august tribunal, over which the venerable Edmund Pendletoli presided.
Accordingly we find that by far the greater number of these cases
reported by Judge Washington, involved high and important, and
some of them, the most profound legal principles. Were I to select
from them one, the argument of which might be taken as a fair specimen of the whole, and as exhibiting also in a high degree the accurate
learning, the close logic, and splendid abilities of Marshall, it would
be the case of Roy vs. Garnett,* argued at the autumn term of the
Court of Appeals in 1794. It was a case turning upon some of those
abstruse principles on which the law governing real property is built,
the very enunciation of which would be incomprehensible to the nonprofessional reader. On account of the great difficulty of the questions involved, as well as of the importance of the matter in controversy, it had been continued from a preceding term in order to be
argued before, and decided by, a full bench. On either side a formidable array of counsel appeared. Campbell opened the discussion with
more than his usual energy and impressive power. Warden, Bushrod
Washington, and Wickham followed in opposition. It was reserved
for Marshall to make the reply which was to close the argument. The
analysis of that reply is preserved in the report. It may be referred
to as an admirable specimen of the style and manner of Marshall's
reasoning-clear in its statements, simple in its processes, strong and
irresistible in its conclusions. Thoroughly versed in the principles of
the law of real property, and fond of tracing those principles to their
source, he makes no ostentatious display of black-letter learning; a
master of the entire subject in controversy, and familiar with the
whole range of the debate, he does not seek to confound l:s adversaries or perplex the court by that hair-splitting logic, and those metaphysical abstractions in which some of his brethren in Westminster
Hall, even at that day, were fond of indulging. Every thing is direct,
clear, simple, logical, strong-every thing, in short, characteristic of
the mind of Marshall. Though his argument failed to convince the
judgment of the court, no one who reads it, even in the imperfect
* 2 Washington's Reports, 9.




JOHN MARSHALL.                       323
analysis presented by the report, can hesitate to admit its matchless
power, and the almost irresistible force of its conclusions.
I had designed, in this connection, to allude to a few of the more
interesting cases in which the Chief-Justice was engaged while an advocate at the bar; but in doing so it would become necessary to
abridge the brief notice contemplated of those grave constitutional
questions which passed under his review while on the bench, and
the design is therefore the more willingly abandoned.  Justice to
the subject, however, will require some notice of one of these cases, as
well on account of its own intrinsic importance, and the great interest
it excited in Virginia, as of the splendid forensic effort of Marshall in
its final argument-an argument which deservedly placed him on an
equality with the very ablest advocates who had ever appeared at the
American bar. I allude to the great case of Ware, Administrator,
&c., vs. Hylton and others, which decided the right of British creditors
under the treaty of peace, to recover debts contracted before the war,
which had been sequestrated during the war by an act of the State
Legislature.
This suit was instituted in the United States Circuit Court for the
District of Virginia, in 1791, and was terminated only by its final adjudication in the Supreme Court of the United States in the winter of
1796. The facts presented were briefly these. The defendants, Hylton and others, citizens of Virginia, had, before the war of the revolution, executed their bond to the plaintiff, William Jones, a subject of
Great Britain, (who dying pendente lite, his administrator, Ware, was
substituted,) in the penal sum of ~2976 11s. 6d. Under the Virginia
act of sequestration, passed in m l7, the defendants paid into the Virginia loan office part of their debt, and took a certificate from the
commissioners and a receipt from the Governor and Council in discharge thereof, pursuant to the provisions of the act. Notwithstanding this discharge, the plaintiff, after the treaty of peace, brought a
suit to recover the whole debt, claiming a right thereto under the
treaty, one article of which expressly provided that "creditors, on
either side, shall meet with no lawful impediment to the recovery of
the full value, in sterling money, of all bona fide debts heretofore contracted." The question, therefore, was, whether the payment of the
debt to the State, pursuant to its sequestration law was an absolute




324             LIVES OF THE CHIEF-JUSTICES.
discharge to the creditor; and whether the treaty of peace could annul a legislative act of one of the States, and destroy rights acquired
by, or vested in, individuals by virtue of such acts. The case originally
came on for trial at the Circuit Court of the United States at Richmond, in November, 1791, before Judges Johnson and Blair of the
Supreme Court, and Griffin, District Judge, and afterwards, in 1793,
before Chief-Justice Jay and Judge Iredell, and the same District Judge.
Marshall was one of the counsel for the defendants, the American
debtors, having for his colleagues Patrick Henry, Alexander Campbell, and Col. Innis, the Attorney-General of Virginia. They were
opposed by Mr. Ronald, Mr. Baker, Mr. Wickham, and Mr. Starke.
Such an array of counsel, on either side, would never have been
retained, except in a cause of the very greatest magnitude and difficulty. The question was, indeed, one of the highest interest to the
people of Virginia, involving as it did the honor of the State, and the
fortunes of many of her citizens. Mr. Wirt, in his life of Patrick Henry,
has given a full sketch of the speech of that celebrated orator in
this case-a speech which occupied three days in its delivery, and
which he considers to be " his most distinguished display of professional talents." *  Marshall followed Mr. Henry, and was succeeded
by Campbell and Innis, both of them men of rare powers of forensic
eloquence. The discussion in this great case seems to have been one
of the most brilliant exhibitions ever witnessed at the bar of Virginia,
and to have been carried on, in the language of Mr. Wirt, " with so
much learning, argument, and eloquence, as to have placed that bar,
in the estimation of the federal judges, above all others in the United
States."  That this eulogy is not too highly colored, is evident from
the language of Judge Iredell, as it is found embodied in the opinion
pronounced by him in the case. " The cause," he says, " has been
spoken to, at the bar, (alluding to the trial before him,) with a degree
of ability equal to any occasion. However painfully I may at any
time reflect on the inadequacy of my own talents, I shall as long as I
live, remember with pleasure and respect the arguments which I have
heard in this case. They have discovered an ingenuity, a depth of
investigation, and a power of reasoning fully equal to any thing I have
* Judge Iredell, on hearing Honry's speech, is said to have exclaimed on the
bench: " Gracious God! He is an orator indeed!"




JOHN MARSHALL.                      325
ever witnessed, and some of them have been adorned with a splendor
of eloquence surpassing what I have ever felt before. Fatigue has
given way under its influence, and the heart has been warmed, while
the understanding has been instructed." *  If Henry is justly entitled
to so much of the above compliment as refers to the " splendor of eloquence" exhibited on that occasion, Marshall may fairly claim his full
share of that which speaks of a " depth of investigation and a power
of reasoning " equal to any thing which that eminent and experienced
judge had ever before witnessed.
On the trial at the Circuit, the court sustained the main positions
taken by the defendants; and from this judgment the plaintiffs appealed to the Supreme Court. When the cause came on for argument
in the winter of 1796, (Mr. Henry in the mean time having retired
from the bar,) Marshall appeared as the leading counsel for the defendants, with his associate, Campbell, a man of whom Wirt says,
that "for mere eloquence, his equal has never been seen in the United
States." They were opposed by three of the most eminent lawyers at
the Pennsylvania bar, Tighlman, Lewis and Wilcocks. The case has
been fully reported, with the opinions of the court and a brief sketch
of the argument of counsel. The report, however, by no means does
justice to the masterly and every way triumphant effort of Marshall,
being little more than a resume, or mere summary, of his argument. In
order to gain an idea of its astonishing force, and the wonderful effect
it produced, we must turn away from the reports and consult cotemporary accounts, as handed down in the traditionary annals of the bar.
Though Marshall was upon the losing side of the question, yet this
circumstance detracted not the least from the eclat of his brilliant
effort. He had reached, at a bound, the proudest eminence of professional fame. He stood among his brethren an intellectual giant,
and the public gaze was fixed upon him in admiration. His reputation was no longer provincial, it had become a part of the reputation
of the American bar.
In one of those familiar and agreeable letters which Wirt was accustomed to write to his friends, he alludes to this great argument, years
afterwards, with that feeling of admiration for the Chief-Justice,
* See Opinion of Judge Iredell in this case, 3 Dallas Reports.
t 3 Dallas Reports, pages 195 to 285.




326              LIVES OF THE CHIEF-JUSTICES.
which he habitually cherished; and contrasts its massive strength with
the brilliant and eloquent, but less effective display of his associate.
/' Campbell played off his Apollonian airs; but they were lost. Marshall spoke, as he always does, to the judgment merely, and for the
simple purpose of convincing. Marshall was justly pronounced one
of the greatest men of the country. He was followed by crowds,
looked upon, and courted with every evidence of admiration and
respect for the great powers of his mind. Campbell was neglected
and slighted, and came home in disgust.    Marshall's maxim seems
always to have been,'aim exclusively at strength,' and from his
eminent success, I say, if I had my life to go over again, I would practise on his maxim with the most rigorous severity, until the character
of my mind was established." *
Notwitstanding the diligence with which Marshall applied himself
to his professional avocations, he found it impossible to withdraw
wholly from politics.  At that day party spirit ran high in Virginia,
and almost every gentleman of talents and standing in the commonwealth found himself arrayed on one side or the other of the great
political questions which agitated the public mind. The proclamation of neutrality had resulted in drawing a distinct and visible line of
division between the two parties.  Marshall, though he had hailed the
advent of the French Revolution, in common with the great mass of
his countrymen, as the dawn of a brighter day for Europe and the
world, did not for a moment hesitate firmly and boldly to place himself' on the side of the administration, and vigorously to defend its
policy, both in writing and in oral speech. In opposition to the
* 2 Kennedy's Life of Wirt, p. 76.
Wirt was fond of alluding to the intellectual characteristics of Marshall, and of
holding them up as an example and incentive to others. " Aim," he says in a
letter to a friend, "at the character of strength, cogency, and comprehension,
and imitate of all things Judge Marshall's and Locke's simple process of reasoning. The world will ever give its sanction to this as the truest criterion of superior minds."t And again in a letter to his son-in-law: " Observe particularly
the action of Marshall's mind. * * * Compare it closely and carefully with
that of Mansfield, Hardwicke, Kenyon, and Thurlow. These are the great steamships of the law to which we should lash ourselves, till we catch and learn to keep
their momentum, and become steamships in our turn.'
t Life of Wirt, Vol. II. pp. 67 and 383.




JOHN MARSHALL.                      327
opinion of some of the first and ablest statesmen of Virginia, he also
defended the policy of the mission to England, and the treaty of
peace negociated by Mr. Jay. At this critical juncture in the affairs
of the nation, men of the highest character and standing stepped aside
from their private pursuits and business avocations, to mingle in the
primary meetings of the people, with the view of giving direction and
energy to the public sentiment. Chancellor Wythe presided at a
meeting in Richmond, at which resolutions were passed denouncing
the treaty " as insulting to the dignity, injurious to the interests, dangerous to the security, and repugnant to the Constitution of the United
States," and Marshall, addressing an assemblage of the same people,
in a vigorous and searching speech, succeeded on his part in carrying resolutions approving the conduct of the executive in sanctioning
the treaty.
It was about this time that Marshall was again drawn from his profession and forced to accept a seat in the Legislature, contrary to his
own wishes and expectations. The circumstances attending his election certainly show him to have been in possession of a very extraordinary degree of personal popularity, and must have been highly
gratifying and flattering to his feelings. They are related as follows:
From the time of his withdrawal from the Legislature in 1792, two
opposing candidates had divided the city of Richmond; the one his
intimate friend, and holding the same political sentiments with himself; the other a most zealous partizan of the opposition. Each
election between these gentlemen, who were both popular, had been
decided by a small majority, and the approaching contest was entirely
doubtful. Mr. Marshall attended the polls at an early hour and gave
his vote for his friend. While at the polls a gentleman demanded
that a poll should be opened for Mr. Marshall.  The latter was
greatly surprised at the proposal, and unhesitatingly expressed his
dissent, declaring that his wishes and feeling and honor were engaged
for one of the candidates. At the same time he announced his willingness to become a candidate the next year. He retired from the polls
and immediately gave his attendance to the business of one of the
courts which was then in session. A poll was, however, opened for
him in his absence by the gentleman who first suggested it, notwithstanding his positive refusal. The election was suspended for a few




328              LIVES OF THE CHIEF-JUSTICES.
minutes; a consultation took place among the freeholders; they
determined to support him; and in the evening he received the information of his election.*
Marshall's election was a most important and timely aid to the
administration.  He stood now   among the leaders of the Federal
party in Virginia. The position to which he was elected was
precisely the place where his aid was most necessary, and his efforts
could be most effectual. The exciting discussion  upon Jay's treaty
was about to pass from the popular forum into the Legislature.
Marshall met and grappled with it there. Anxious friends, it is said,
were solicitous that he should avoid engaging in this  discussion.  It
would sacrifice, it was thought, a portion of his well-earned popularity, and might even subject him to rude attacks from the opposition.  But Marshall was not a man to shrink from an independent and
fearless discharge of duty.  The timid Mansfield,t cowering under
the haughty glance of Pitt on the floor of the British Parliament, wa;
not the prototype of John Marshall in the Virginia Assembly. In him
the firm nerve and steady resolution of the grenadier at Brandywine, had
ripened and matured into that higher species of courage, which animates its possessor to risk popularity and reputation, in the discharge
of duty, and fearlessly breast the turbulent waves of popular passion. He would not, he said, in answer to the kind remonstrances of
his friends, move any measure to excite such a debate; but if the
subject were brought forward by others, he should, at every hazard,
vindicate the administration, and assert his own opinions.
That moment speedily came. The question of the treaty was soon
raised, and the Constitutional objections to it were urged with much
force and triumphant confidence.  Marshall took the floor, in reply.
* North American Review, vol. XXVI. p. 22.
t "It must be admitted," says Lord Campbell, "that from a want of moral
courage he quailed, not only under the ascendancy of Lord Chatham-whom
beings of a superior order to our species, might have been afraid to encounterbut of Lord Camden, who was much his inferior in powers of mind and in acquired
knowledge. His cry of Craven! when the lists had been stretched, and the
trumpet had been sounded for a passage of arms on the libel field, lowered his
character, and must have been a source of painful remembrance for himself to his
dying day. With boldness he might have gained a victory which would have
added new lustre to his name."-2 Lives of Chief-Justices of England, 576.




JOHN MARSHALL.                      329
He entered the intellectual arena, not encased in the glittering panoply
of a splendid eloquence, with the burnished and shining weapons of a
gorgeous declamation and an elegant rhetoric-but armed with the
Achillean spear, or perhaps it may better be said with the Herculean
club of a close, compact, simple, but irresistible logic, which bore down
every thing before it. His speech on this occasion was of tremendous
power. It has been represented as one of the noblest efforts of his genius.
So clearly and so decisively, says one of his eulogists, did he demonstrate the constitutional power of the executive to negociate a commercial treaty-not only from the words of the Constitution and
the practice of nations, but from the opinions of Jefferson himself, and
the sanction of the whole Virginian delegation in Congress —that the
constitutional objection was abandoned, and the Assembly confined
itself to passing a simple resolution, disapproving the treaty in point
of expediency.
The fame of this admirable argument spread throughout the Union.
Even with political opponents it enhanced the estimate of his
character; and it brought him into notice of some of the most eminent statesmen who then graced our public councils.* When, therefore, he came to Philadelphia, in 1T96, to argue the case of Ware rs.
Hylton, he had already acquired something more than a provincial
reputation-and as a leader of the Federal party in Virginia, he was
immediately received by prominent gentlemen entertaining these
opinions with a degree of kindness and attention, which not even his
subsequent splendid efforts at the bar could enhance. He himself thus
speaks of his reception and first acquaintances in Philadelphia:-" I
then became acquainted with Mr. Cabot, Mr. Ames, Mr. Dexter, and
Mr. Sedgwick, of Massachusetts, Mr. Wadsworth of Connecticut, and
Mr. King, of New York. I was delighted with these gentlemen. The
particular subject (the British Treaty) which introduced me to their
notice, was at that time so interesting, and a Virginian, who supported with any sort of reputation, the measures of the government,
was such a rara avis, that I was received by them all with a degree of
kindness which I had not anticipated. I was particularly intimate
with Mr. Ames, and could scarcely gain credit with him when I assured
him that the appropriations would be seriously opposed in Congress."
* See Sketch by Judge Story. Miscellaneous Writings, p. 666.




330             LIVES OF THE CHIEF-JUSTICES.
The following year Marshall was again elected to the State Legislature. He did not often take part in its debates, however, and rarely,
except when some measure of the Federal government was under discussion. It was during this session that in a debate relative to the
general policy of the administration, in which Marshall warmly
engaged, a Federal member moved a resolution expressing the high
confidence of the House in the "virtue, patriotism, and wisdom" of
the President. A gentleman of the opposition, hurried away by the
intemperate zeal of party feeling, moved to strike out the word
wisdom. This motion, as might have been expected, called out an
animated and even violent discussion, in which the whole talent of
both sides of the House was brought into action. "Will it be believed," exclaims Marshall, indignantly, in a letter to a friend, "that
the word was retained by a very small majority. A very small majority in the Legislature of Virginia acknowledging the wisdom of
General Washington! "*
About this period the President tendered him the office of AttorneyGeneral of the United States, which he declined, on the ground of its interference with his extensive and lucrative private practice. On the
return of Mr. Monroe from France, Washington solicited him to accept
this important mission. It was a place whose duties he was preeminently qualified to discharge; for he was thoroughly master of the
points involved in the controversy with France, and indeed of the
whole subject of our foreign relations.  This honorable appointment, too, he thought proper to decline, preferring to continue the
practice of his profession, for which, above all public employments, he
declared his own preference was decided. He was soon, however,
induced to reconsider this determination, and to yield his own inclinations to what he conceived to be the general good of the country. In
the summer of 1797, President Adams appointed him, with General
Pinckney and Elbridge Gerry, on a special, and it may well be called
an extraordinary mission to France,-an appointment which in the
critical state of public affairs, and the great interests hanging on the
results of the mission, General Marshall did not feel at liberty to
decline.
In the preceding sketch of Chief-Justice Jay, I have alluded to the
* Sketch by Judge Story.




JOHN MARSHALL.                     331
foreign relations of the United States at this period, and to the train
of events which resulted in the mission to England, and the treaty
subsequently made with that power. Mr. Monroe was Minister to
France at the time of Jay's treaty, having been appointed to supersede Gouverneur Morris, who had become obnoxious to the French
Republic. His reception by the National Convention had been flattering. The Directory, which, in the third year of the Republic, succeeded the Convention, continued an official intercourse with Mr. Monroe, characterized with every appearance of confidence and esteem,
until after the consummation of the British treaty, which produced,
as might have been expected, great indignation and resentment. Mr.
Monroe was soon after recalled by his Government, not without some
marks of disapprobation, which his candid disclosures soon dispelled,
and General Charles Cotesworth Pinckney of South Carolina, Marshall having declined the nomination, was appointed to succeed him.
Gen. Pinckney was a member of the party which it was supposed
was inimical to France. His appointment was not deemed complimentary by the authorities then representing the Republic. The speech
of Barras, the President of the Directory, to Monroe on his return
from France, in which he declared that the Republic would not "abase
herself by calculating the consequences of the condescension of the
American Government to the suggestions of her former tyrants"
(alluding to the treaty of Jay), had called out severe and just animadversion from President Adams in his message to Congress. The
Directory thereupon haughtily refused to receive Gen. Pinckney, or
any minister from the United States, "until after the reparation of the
grievances demanded of the American Government which the French
Republic has a right to expect."
I do not intend here to discuss the question at issue between France
and America, in regard to which a wide diversity of opinion existed at
that day and perhaps still continues to exist. France complained not
only of the neutrality and indifference of America, but of her positive
partiality for England, the most formidable of the enemies of the republic; and this too notwithstanding the treaties of 1778 between
the United States and France, and the Convention of 1788. "The
United States," said the French minister, "besides having departed
from the principles of the armed neutrality during the war for their




332               LIVES OF THE CHIEF-JUSTICES.
independence, have given to England, to the detriment of their first
allies, the most striking marks of an unbounded condescension."   On
the other hand the American government replied to these accusations
that a constant system of hostility had been kept up on the commerce
of our country, under sanction of the decrees of the National Convention.  France complained of a breach of treaty stipulations on the
part of America, and America complained of depredations on her commerce, committed by France.     Neither party perhaps was without
some plausible ground of complaint. But while the injuries of France
to America were positive, open, and palpable, those of America to
France were constructive merely and of a negative character.*
Notwithstanding the haughty conduct of France, and her refusal to
receive Mr. Pinckney, President Adams soon after being placed at the
head of the government, determined to make another attempt to restore the amicable relations which had existed between that Republic
and America, and to make "a fresh attempt at negociation on terms
compatible with the rights, duties, interests, and honor of the nation."
Mr. Adams desired Jefferson to accept this mission, who declined.
Failing in this, it was his intention to appoint Madison, with Hamilton
* A writer in the North American Review for July, 1834, concedes it to be at
least a very doubtful question whether we were not actually bound by the treaty
to take part with France in her Revolutionary wars, unless we could obtain her
consent to our neutrality. Hamilton, and the other advocates of a neutral policy,
admitted that the alliance by the treaty of 1778 was a permanent alliance-des a
present et pour-toujours-but it was contended that such an alliance could only
be construed to apply to a defensive war, and that the existing lwar on the part of
France was an offensive one. Neither of these positions, however, seems to be
strictly correct; certainly not the latter, for if ever there was a defensive war it
was that into which the French Republic was forced in 1792. In regard to the former of these positions, it may be said that, if the treaty did create such an obligation, it was released by the positive declaration of the French Government, communicated through its minister Genet on his arrival in this country, who declared
that the Republic did not expect the United States to engage with it in actual
hostilities. The French minister, Talleyrand, mentions this fact in one of his
communications to Pinckney, Marshall and Gerry. "The Republic was hardly
constituted," he says, " when a minister was sent to Philadelphia, whose first act
was to declare to the United States, that they would not be pressed to execute the
defensive clauses of the treaty of Alliances, although the circumstances in the
least equivocal manner exhibited the casus fcederis.'"-See A.merican State
Papers.




JOHN MARSHALL.                         333
as his colleague.  But upon merely mentioning the name of Madison
to one of his Cabinet, he found, he says, that "it excited a profound
gloom and solemn countenance," which after some time broke out in
"Mr. President, we are willing to resign."*  Fearing that Madison,
if nominated, would encounter a veto from the Senate, he abandoned
the idea of appointing him, and with him Hamilton also.
Still adhering to his design of appointing some gentleman from the
Republican party on this important mission, Mr. Adams, in opposition
to the wishes of his Cabinet, but with that spirit of independence and
self-reliance which marked all his actions, named Mr. Gerry, who, after
some hesitation, consented to accept the appointment, with Gen. Pinckney and Marshall for his colleagues.
It was with great reluctance that Marshall entered upon this important duty. He had a short time before declined the appointment
of sole minister to France, having determined to remain for the future
entirely in his profession, and he thought, he says, that determination unalterable.  His situation at the bar appeared to him   more
independent and not less honorable than any other, and his preference for it was decided. But public considerations and a high sense
of duty finally overcame his scruples and he concluded to accept the
appointment.
The history of this mission is one of the most singular that is anywhere recorded in the annals of diplomacy. The envoys met in Paris
on the 4th of October, 1797.t   It was at a moment peculiarly inauspicious for the success of their mission. The Republic had vanquished
its enemies on every side. Spain, Portugal, and Holland had successively yielded. Italy lay prostrate at the feet of the conqueror; and
* See Correspondence of President Adams.
t On their very entry into Paris the envoys were besieged, and obliged to pay
the customary tribute. " The morning after my arrival," says Mr. Gerry, "I was
waited upon by the musicians of the Executive, and the next day by a deputation of Poissards, or fishwomen, for presents." These interesting deputations
expected fifteen or twenty guineas, which each of the envoys, according to custom,
was obliged to give. Mr. Gerry, it seems, negociated with the Poissards through
the secretary of the legation, Major Rutledge, and thus escaped their kind caresses;
but Marshall and Pinckney were not so fortunate:-" When the ladies," adds Mr.
Gerry, " get sight of a minister, as they did of my colleagues, they smother him
with their delicate kisses."




334             LIVES OF THE CHIEF-JUSTICES.
Bonaparte had forced the Emperor of Austria into the celebrated
treaty of Campo Formia. The Directoryhad reached the zenith of its
pride and arrogance; and its haughty temper had been already manifested toward America, in such a manner as to leave but slight hopes
of a successful and honorable negotiation.  The dispatches of the
envoys disclose a most revolting picture of the shameless intrigues and
corruptions of French diplomacy, under the auspices of the Directory,
guidedl by the subtle genius of that master of the art, Talleyrand.
The Americans were informed, not officially, and not even responsibly,
that the Directory were exasperated at some part of the President's
speech at the opening of Congress, and that they would not probably
have a public audience until their negotiation was finished; and that,
in order to soothe the irritable temper of the Directory, and pave the
way to a negotiation, two things were necessary-first to propose a
loan by the United States of some millions of dollars for the French
treasury, and secondly "in compliance with diplomatic usage" address
themselves to the "private gratification of certain high officers of government" by paying, as a sort of corruption fund, the sum of fifty
thousand pounds sterling. Without pursuing the intricacies of this
semi-official negotiation, if such it may be called, suffice it to say the
Americans refused the tribute. The consequence was that they were
never officially received; that they remained six months in Paris, not
merely unaccredited, but exposed to personal and official mortifications
of the most humiliating kind; and were finally obliged to return, without effecting the object of their mission, and even without the common
courtesy of an official discussion of it.*
Faithful to their trust, and resolved to leave no means untried to
accomplish their object, the envoys remained at their post under all
these discouragements and difficulties.  On the 1lth of January they
addressed the government through the Minister for Foreign Affairs in
a voluminous and elaborate paper, which contained a full statement and
defence of the American policy with regard to France. This masterly
communication is found among the published American State Papers.t
It needs to be closely and carefully read in order to be fully appreciated. It was draughted by General Marshall, and without doubt
* See Austin's Life of Gerry, for a full and impartial account of this mission.
t State Papers from 1797 to 1801, pp. 219 to 260.




JOHN MARSHALL.                      335
will compare favorably with the ablest diplomatic correspondence in
the American archives. The author of the life of Gerry claims for
that gentleman the credit of the revision of this admirable State
paper, particularly, he says, in regard to its style and manner, and in
giving it that " softening and courteous form of address," which everywhere pervades it. However this may be-and the claim is perhaps
well founded-one thing is certain, that the style and manner, admirable though these are, may be considered as the least of its merits.
In its matter, and the substance of its argument-clear and luminous in
its statement, strong in its solid, manly sense, and impregnable in its
logic-is found its main title to our admiration. It exhausts the
whole subject in controversy; nothing more apparently remains to be
said, and at its close one is at a loss to know or conjecture what kind
of plausible case can possibly be made out in reply, even by the astute
and subtle intellect of a Talleyrand.
To this communication no immediate reply was made. The envoys
still remained unrecognized, isolated, cut off from all communication
with the government except that arising from the occasional and unofficial visits of Mr. Gerry to Talleyrand, and interviews with certain
nameless and mysterious intriguers, who had apparently been commissioned to sound the American Ministers and bring them to terms. On
the 19th of February they sent to Talleyrand desiring to know if he had
any coilmmuniication to make in consequence of their letter of the 17th
of the previous month. The minister replied that he had no answer
to make; the Directory had taken no order on the subject-when
they did he would inform the envoys of it. Soon after they again
wrote to Talleyrand soliciting a personal interview. He appointed
the 2d March, at which time they waited upon him and were received
in a private and unofficial capacity. At this interview and another
which took place a few days later, the French minister disclosed very
clearly the intentions of his government, and gave the envoys to
understand in a manner not to be mistaken, that a peace-offering to
the wounded feelings of the Directory was necessary in the shape of a
loan, as a preliminary to negotiation. To this proposition the envoys
unanimously refused to accede. Talleyrand then modified his proposition to the effect that the loan, instead of being immediately advanced,
either directly, or by the purchase of Dutch rescriptions which the




336              LIVES OF THE CHIEF-JUSTICES.
Directory then happened to have on hand, should be contracted payable after the war, and in supplies at St. Domingo.  On this proposition it is understood a difference of opinion arose among the envoys.
Marshall and Pinckney absolutely rejected it, and declined considering
the proposal in any form; Mr. Gerry did not deem it, in this modified
form, wholly inadmissible as the basis of a treaty ad referendum, reserving to himself the right of a decision on the whole matter when a
decision should be eventually necessary.*
Thils circumstance furnished an occasion to Talleyrand for the employment of one of his characteristic strokes of policy.  He attempted
to separate the American envoys and to open negotiations with that
"one of the three whose opinions, presumed to be more impartial,
promise, in the course of the explanations, more of that reciprocal
confidence (pvls de cette confiance reciproque) which is indispensable."
This proposition was made in a letter from the French minister under
date of March 18th, in which he replies at length to the communication of the American envoys, and with much ingenuity and no little
plausibility of argument states the French side of the question.t
It was now evident that all hopes of the successful result of the
mission were at an end. Talleyrand's proposition of opening a negotiation with Mr. Gerry alone was of course promptly declined. The
envoys, however, deemed it their duty to reply to his communication,
which they did on the third of April in a letter drafted by General
Marshall, and signed by all three of the envoys.t  This calm, temperate and dignified reply fully equals in all respects the original communication of the 17th of January, and fully merits the warm eulogy
which it receives at the hands of the biographer of Mr. Gerry. In
clear and forcible language, with firmness, frankness, and plainness
suited to the character of the United States, it meets, answers, refutes,
every topic in succession which was contained in the minister's letter.
It denies his accusations, it corrects his misstatements, it overturns his
arguments, and presents another splendid instance of the powerful de* 2 Austin's Life of Gerry, p. 219. Mr. Austin explains and defends the opinions
and conduct of Mr. Gerry on this subject; particularly against the severe and unjust censures of the Secretary of State.
t American State Papers 1797 to 1801, pp. 270 to 278.
t American State Papers, from 1797 to 1801, pp. 278 to 304.




JOHN MARSHALL.                      337
fence which integrity, and talents, and learning are capable of making
for the injured rights of the country.*
The letter closed with the request that if the Directory should be
pleased to order passports for the whole or any of them, such passports
would be accompanied with letters of safe conduct, &c. On the same
day Mr. Gerry received a note from Talleyrand inviting him to resume
their " reciprocal communications," on the supposition, as the minister
remarks, " that Messrs. Marshall and Pinckney have thought it useful
and proper, in consequence of the intimations given, &c. to quit the
territories of the Republic." Thus these two gentlemen received, as
President Adams expresses it, their conge. Mr. Gerry, though he remained in France after the departure of Marshall and Pinckney,
promptly rejected all propositions to proceed to a separate negotiation, maintaining, contrary to the opinion of Talleyrand, that his
whole powers ceased with the departure of his colleagues.
So terminated this inglorious, this unfortunate mission. "History,"
says Marshall, " will scarcely furnish the example of a nation, not absolutely degraded, which has received from a foreign power such open
contumely and undisguised insult, as were, on this occasion, suffered
by the United States in the persons of their ministers."t
After divers perplexing embarrassments, passports were at length
received about the 12th of April, and General Marshall immediately
prepared to return to the United States. A difficulty occurred in his
obtaining a letter of safe conduct for the vessel in which he proposed
to embark, which induced him to express a design, in case it was refused, of returning through England. The same confidential agent of
Mons. Talleyrand, with whom Marshall had formerly conversed, said
to him on learning this, that it would give great offence to the government of France; and further, that if he should do so, it would be
immediately published by the government that he had gone to England to receive the wages he had earned by breaking off the treaty
with France! There were men in France, it seems, who could actually be made to believe that Marshall and Pinckney, in refusing to
compromise the honor of their country by yielding to the grasping
cupidity of the Republic, were the paid stipendiaries of a foreign
* Life of Gerry, Vol. II. p. 225.
t 2 Life of Washington, 427
22




338            LIVES OF THE CHIEF-JUSTICES.
power! It is not to be supposed that the threat would have deterred
the American minister from his design of returning by way of England; but the receipt of his letter of safe conduct soon after removed
the necessity of putting any such design into execution; and shaking
the dust of Paris from his feet, he embarked from France on the 16th
of April, 1798, for his native country.
The high reputation of Marshall suffered no diminution by reason
of the inglorious termination of this mission. On the contrary his
conduct was everywhere commended and applauded. On the 17th of
June, 1798, he arrived at New York, where he was received with the
highest marks of respect. His entrance into Philadelphia, two days
afterwards, had the eclat of a triumph. Escorted by the military
from Frankford to the city, he found himself, on his arrival, surrounded
by crowds of citizens anxious to testify their veneration and gratitude.
Public addresses were made to him, breathing sentiments of the
liveliest affection and respect. A public dinner was given to him by
members of both houses of Congress, " as an evidence of affection for
his person, and of their grateful approbation of the patriotic firmness
with which he sustained the dignity of his country in his important
mission," and the country at large responded with one voice to the
sentiment pronounced at this celebration; "Millions for defence, but
not a cent for tribute."*
It appeared to Marshall that the period had now arrived when he
would be able to realize the object of his warmest aspirations, by devoting his time and talents exclusively to the practice of that noble
profession to which he was so ardently attached. Solicited to become
a candidate for Congress, he promptly declined, and soon found himself again immersed in causes, and surrounded by his old clients. But
it seemed his fortune never to be able to escape the denlnliXs of public
duty. Diligently though he labored to shun them, public employments
on every side followed him, sought him out, ana pressed themselves
upon him.
The circumstances which called Marshall again from his profession,
and which separated him from it finally and for ever, are so peculiar
and withal so full of interest, that I cannot pass them by in silence.
He had been invited by Washington to spend a few days at Mount
* Eulogy by Binney.




JOHN MARSHALL.                     339
Vernon, in company with Bushrod Washington, a nephew of the General. Soon after their arrival the General communicated to his guests
the main object of his invitation. It was to urge both of them to
enter public life, and become candidates for Congress. The cause of
Washington's solicitude upon this occasion is quite apparent. It was,
as hle believed, a most critical period in the history of the country.
The final contest between the Federal and the Republican parties was
at hand. His confidence, as I have elsewhere remarked, rested with
the former; the latter served only to excite his distrust and awaken
his alarm. In the honest sincerity of his heart, he believed it to be a
time when good men should come forward and strive to arrest what he
regarded as the downward tendency of society and government, whose
future filled him with the most gloomy forebodings. There is a sad
and touching interest awakened by these last thoughts and actions of
this great man, whose mind, full of gloomy apprehensions, was keenly
alive to unfounded suspicions of evil; whose vision, darkened by unsubstantial shadows, was unable to penetrate the veil which concealed
the brilliant scenes of the future. To him it was not permitted, as to
the chosen leader of Israel from Pisgah's top, to see, though he might
not hope to enter, that promised land, destined to be the future inheritance of his people.
These dark apprehensions and forebodings moved Washington to an
earnest and pressing effort to induce such men as Marshall and Bushrod Washington to enter the public service for the purpose of attempting to arrest the swelling tide of evil. I have at this moment before
me one of his autograph letters, written about the same period-the
last year of his life-on the same subject, to Patrick Henry. It is
marked in the margin "confidential," and exhibits in every line and
letter-in every character of. that methodical and somewhat formal,
but clear, and bold handwriting, unmistakeable evidence of authenticity.
" It would be a waste of time," he says, "to attempt to bring to
the view of a person of your observation and discernment, the endeavors of a certain faction among us, to disquiet the public mind with unfounded alarms; to arraign every act of the administration; to set the
people at variance with their government; and to embarrass all its
measures. Equally useless would it be to predict what must be the




340             LIVES OF THE CHIEF-JUSTICES.
inevitable consequence of such policy if it cannot be arrested."  The
writer then proceeds to descant upon the gloomy prospects of the
country, and to lament the fact that " the most respectable and best
qualified characters among us will not come forwarid" in the public
service. "Vain will it be," he continues, " to look for peace and
happiness, or for the security of liberty or property, if civil discord
should ensue; and what else can result from the policy of those
among us, who, by all the means in their power, are driving matters
to extremity, if they cannot be counteracted effectually? The views
of men can only be known or guessed at by their words or actions.
Can those of the leaders of opposition be mistaken then if judged by
this rule? That they are followed by numbers who are unacquainted
with their designs, and suspect as little the tendency of their principles, I am fully persuaded. But if their conduct is viewed with indifference-if there is activity and misrepresentation on one side, and
supineness on the other, their numbers accumulated by intriguing and
discontented foreigners, under proscription, who were at war with their
own government, and the greater part of them with all governments,
their numbers will increase, and nothing short of Omniscience can
foretell the consequences."*
These serious arguments were now urged upon Marshall and Bushrod Washington. The conference, we are told, was earnest, and full
of mutual confidence. The latter gentleman readily yielded to the
persuasions of his uncle, but the former hesitated, on the ground of
his situation and the necessity of attending to his private affairs.
Washington combatted these views, and insisted upon the higher duty
of every good citizen to sacrifice his inclinations and interests, and if
needs be, to sacrifice himself also on the altar of his country's welfare.
To these persuasions Marshall finally yielded-who could resist such an
appeal?-and consented to become a candidate for Congress. After
a sharp contest he was elected, and took his seat in that body in December, 1199. In the meantime President Adams tendered him a
place on the bench of the Supreme Court, vacant by the death of
Judge Iredell, which he promptly declined.
* Mr. Henry responded to this earnest appeal, by offering himself as a candidate
for the State Legislature, to which be was elected. The letter from which the
above extract is taken, is published among Sparks' Collection of the Writings of
Washington.




JOHN MARSHALL.                         341
The elections had been eminently favorable to the Federalists.
They had a clear majority of twenty in the House of Representatives;
still they were not able to carry any strong measure during the session,
for the reason, perhaps, alleged by Jefferson, namely, that " many of
them were new and moderate men, and soon saw the true character of
the party to which they had been well disposed, at a distance."* Of
these "new and moderate" men, Marshall was confessedly the leaderIt is quite clear, that though politically classed as Federalists, they
were not, in the language of the present day, regarded as " reliable,"
by the partisans of the cabinet and the advocates of strong measures.
This will appear by the following passage from  a letter of Wolcott,
written about the time the session commenced.    To the Connecticut
secretary, it seems, the mind of the great Virginia lawyer was not cast
in a mould large enough, and comprehensive enough to enable him to
grasp the full merits of the IIamiltonian policy.
A. number of distinguished men," he says, " appear from       the
southward, who are not pledged by any act to support the system of
the last Congress; these men will pay great respect to the opinions of
General Marshall; he is, doubtless, a man of virtue and distinguished
talents, but he will think much of the State of Virginia, and is too
much disposed to govern the world according to rules of logic; he will
read and expound the Constitution, as if it were a penal statute, and
will sometimes be embarrassed with doubts, of which his friends will not
perceive the importance."t
These apprehensions of the Secretary were realised during the session.t  It has been truly said of Marshall, that his course in. Congress
* Jefferson's Writings, Vol. IIL, p. 436.
t Oliver Wolcott to Fisher Ames. Dec. 29th, 1799.
t Mr. Adams' discarded Secretary of War, McHenry, some months later, when
Marshall had become Secretary of State, even doubted his fidelity to Federal principles. In a letter to Wolcott, under date of November 9th, 1800, he says:-" I
have been told Mr. Marshall has signified that he does not mean to resign in the
event of Mr. Jefferson being elected President, but to wait most patiently the development of his politics. Will there, my friend, be so great an antipathy between the politics of these two gentlemen, that one of them must fly off from the
other?' Wolcott hastens to re-assure his friend on the point:-" The opposition
of sentiment" between Jefferson and Marshall, he says, appears to be decided,
and he believes to be unchangeable.-2 Gibbs' fWolcott, 445, 448.
Upon this point, however, Marshall is himself the best authority. " No politi



342               LIVES OF THE CHIEF-JUSTICES.
was governed solely by his own convictions of right; that if he was a
party man he was so by position, and not from temper or partial
views; and that he drew from his own convictions even that which
went to sustain the efforts and to augment the resources of his party,
Nor was he incapable, when the dictates of his own independent judgment required it, to throw off party trammels, and stand aside from
party associations. Thus upon a resolution to repeal the obnoxious
section of the Sedition Law, passed at the previous session, his name
is found recorded in the affirmative, while the names of all those with
whom he generally acted are on the other side.
Marshall was placed at the head of the committee appointed to
prepare an answer to the President's speech; and he participated, influentially, in all the more important discussions and measures of Congress during the session. These measures are a part of the general
history of the times which it would be improper in this place to review. One of them, however, is too notable, and too intimately connected with the fame of the Chief-Justice, to be passed over in silence.
I allude to the famous debate upon the resolutions of Edward Livingcal considerations," he says, in a private letter to Hamilton, written soon after this
time, and while the presidential contest was pending, and the hard option was
thrown on the Federalists to choose between Jefferson or Burr: "No political considerations could induce me to be the Secretary of State while there was a President, whose political system I believed to be at variance with my own." His prejudices against Jefferson were so deeply rooted and inveterate, that he even preferred Burr, until convinced by the persevering and passionate appeals of Hamilton to the contrary. Still, he said, he could not aid Mr. Jefferson lest it might be
suspected that a desire to be well with the successful candidate, had in some degree
governed his conduct. He regarded him as a man who would " embody himself
with the House of Representatives." "By weakening the office of President," he
goes on to remark, " he will increase his personal power. He will diminish his
responsibility, sap the fundamental principles of the Government, and become the
leader of that party which is about to constitute the majority in the Legislature.
The morals of the author of the letter to Mazzei cannot be pure."-Letter to
Hamilton. 6 Hamilton's Works, 502.
These early prejudices were increased by subsequent differences and conflicts of
opinion, until they resulted, after Burr's trial, in a final cessation of all personal
intercourse between these two gentlemen; a course of conduct in which, as I am
informed by a venerable gentleman now living, and then at the bar,* the example
of Marshall was followed by two or three of his brethren on the bench.
* General Walter Jones.




JOHN MARSHALL.                       343
ston censuring the President for his conduct relative to the extradition
of Thomas Nash, otherwise called Jonathan Robbins. Nash was accused of piracy and murder on board a British national vessel at sea,
and though claiming to be an American citizen, was, on proof of the
offence satisfactory to the Court, surrendered to the British authorities
by the District Court of South Carolina, at the desire and request
of the President, and was subsequently executed. Livingston's resolutions, which were introduced on the 21st of February, declared the
case to be one exclusively of judicial inquiry, and that the decision by
the President of the question whether the casus facderis had arisen,
and his directions to Judge Bee, were " a dangerous interference of
the executive with judicial decisions," and that the compliance of the
Judge was " a sacrifice of the constitutional independence of the judicial power and exposes the administration thereof to suspicion and
reproach."
These strong resolutions of censure, arousing, as may well be supposed, the warmest party and political feelings, excited one of the most
animated and powerful debates which ever arose in the halls of the
American Congress. The whole talent of the house-and it was a
house distinguished even among the early American Congresses for its
splendid ability, genius, eloquence, statesmanship-was drawn out in
this magnificent debate.  On one side stood Edward Livingston, Gallatin, Macon, Nicholas; on the other, Otis, Bayard, Harper, Dana,
Lee, Rutledge, and last, and greatest of all in the massive strength
of his intellect, and the irresistible power of his faculties, John Marshall, of Virginia.
On the 6th of March Gen. Marshall took the floor, and in reply to
Livingston and others delivered that elaborate and triumphant argument which, in the language of Judge Story, settled then and
for ever the points of national law upon which the controversy
hinged.* It was, says the same high authority, one of the most consummate juridical arguments which was ever pronounced in the halls
of legislation; and, like Lord Mansfield's answer to the Prussian
Memorial, it was reponse sans replique,-an answer so irresistible that
* This celebrated speech was written out by Marshall, and published in full.
It may be found in a note to Bee's Reports, 266; also in Appendix to the fifth
volume of Wheaton's Reports, and in Wharton's State Trials, p. 443.




344              LIVES OF TIHE CHIEF-JUSTICES.
it admitted of no reply.* A careful perusal of this celebrated speech
will satisfy the professional reader that this warm eulogy is not exaggerated, especially if we regard the speech in the light of a great
legal and constitutional argument. The lucid order of its topics, the
profoundness of its logic, the extent of its research, and the force of
its illustration, are indeed unsurpassed, nay, unrivalled.  But it is as a
constitutional and legal argument alone that it is calculated to strike
the attention of the reader.  It has no pretensions to eloquence or the
graces of rhetoric —there are no striking antitheses to be found in it,
no bold figures, no rich flow of diction, no copious fullness of expression, no play of the fancy, no warm gush of the imagination and the
feelings.  All is an effort of pure ratiocination-of calm, intellectual
strength-clear, cold, transparent as the limpid ice beneath which glide
swiftly and silently the deep and unfathomable waters of the stream.
In the simplicity, and order, and strength of its argument, it is not unlike some of those judicial opinions which its author subsequently pronounced from the bench; indeed, it appears to be precisely such an
argument as the Chief-Justice ten years later would have written out
after the topic had been thoroughly discussed before him and illustrated by a full display of forensic learning and eloquence.  According to the tradition of the time, it is said, that a celebrated statesman,
then in Congress, being requested to answer this speech, excused hillself on the ground that he deemed it unanswerable.t  It appears from
the report of the debate that Mr. Nicholas, of Virginia, was somewhat bolder, for he certainly did reply to Marshall, as the record
shows. The question was then taken, and the resolutions lost by a
majority of twenty-six; some of the opposition members voting against
them.
This effort of Marshall is perhaps the best specimen that remains
of his style and manner both of forensic and legislative speaking.
From it we may infer that he never was what may be called a great
orator. The matter rather than the manner, the substance, and not
the graces of oratory was the thing which he mainly cultivated.  He
* Even Jefferson. so sparing in praise to political opponents, admits the success of Marshall's effort. In a letter to Madison he says: "Livingston, Nicholas,
and Gallatin distinguished themselves on one side, and Marshall greatly on the
other."-Jefferson's Correspondence, Vol. III. p. 434.
t 26 Vol. North American Review, p. 31.




JOHN MARSHALL.                      345
had much of the severe and unadorned simplicity of style which characterizes the speeches of Calhoun, with very little of the copious and
Ciceronian flow of Clay, and none of that intense power of language,
that gorgeousness of expression in which Webster was sometimes
accustomed to clothe a great thought, throwing it out in one of those
magnificent sentences, which, once heard, haunt the mind for years.
Of his manner of elocution, and his powers as a public speaker, Judge
Story says:  " In regard to eloquence, if by that be merely meant an
ornamental diction, splendor of style, impassioned delivery, and fine
flourishes of rhetoric, it could scarcely be said to belong to his
forensic addresses.     *      *       *       *      *
But if by eloquence be meant the power to address other men's
minds in language expressive and luminous; to present the proper
topics of argument in their just order and fullness; to convince the
understanding by earnest and sententious appeals; and, by the force
of reasoning, to disarm prejudices, to subdue passions, and to dissipate
popular delusions; if these be the attributes of eloquence, then, indeed,
few men might more justly aspire to such a distinction. I would not
claim for him that he possessed the power to seduce men's understandings by persuasive insinuations or honied accents; but I affirm that
he withdrew their understandings from the potency of such artifices,
so that they fell lifeless at his feet; telutmque imbelle sine ictu. To him
may unhesitatingly be applied the language of Cicero pronounced upon
one of the greatest lawyers of Rome, that he possessed a mastery of
the highest art of oratory; the art of analyzing, defining, and illustrating a subject; separating the true from the false; and deducing
from each other the appropriate consequences." Judge Story, though
he had never heard Marshall at the bar, adds that there were times in
his private conversation and conferences, " in which he has been roused
by the interest of the subject to such a glowing strain of animated
reasoning, that I am convinced that he was no stranger to appeals to
the heart; and that when he chose he could call up from the very
depths of the soul its most powerful feelings."
Congress adjourned on the 14th day of May, bringing to a close
Marshall's first and only term of service in the National Legislature.
Other and still more responsible duties now sought him out and de



346              LIVES OF THE CHIEF-JUSTICES.
manded his attention. As a friend to the administration, he was
called upon to give it the most signal proofs of his confidence. The
breach between President Adams and his " disjointed cabinet," as it
was called in the newspapers of the day, had become irreconcilable,*
and immediately on the adjournment of Congress the explosion came.
McHenry, the Secretary of War, was the first to retire.  His place
was immediately filled by the appointment of Marshall. This appointment was entirely unexpected; the first intimation received of it being
at the Secretary's office, where he happened on a matter of business
preparatory to returning to Virginia.  He immediately wrote to Mr.
Adams requesting him to withdraw the nomination; but before any
action was taken the President's rupture with Col. Pickering resulted
in the dismissal of that gentleman, and Marshall was appointed Secretary of State, Mr. Dexter being placed at the head of the War department.
Wolcott asserts that these removals and appointments were made
by Mr. Adams in a moment of passion; that the Secretaries were dismissed without any previous designation of their successors; and that
it was for a long time uncertain how the vacancies would be filled.
He was of the opinion that Marshall, having declined the office of
Secretary of War, would decline also that of Secretary of State, but
in this he proved to be mistaken.  As a consistent friend of the administration, particularly in its foreign policy, which the "British faction," as Mr. Adams termed it, so warmly condemned, he did not feel
at liberty to decline the appointment, and there is no evidence that he
did not accept it cheerfully and readily. As to the dismissal of the
Secretaries, whether done in a moment of passion or not, it can
scarcely be denied that the step was both justifiable and necessary.
No President, least of all one made of such stern stuff as John Adams,
could be expected to keep in his Cabinet, as his confidential advisers,
* Secretary Wolcott, in a letter written at the commencement of the last session,
says with much bitterness: " The President's mind is in a state which renders it
difficult to determine what prudence and duty require from those about him. He
considers Col. Pickering, Mr. McHenry and myself as his enemies; his resentments against Gen. Hamilton are excessive; he declares his belief of the existence
of a British faction in the United States."
The reader is referred to what was said ante, page 274, in regard to the origin of
this misunderstanding between the President and his Cabinet.




JOHN MARSHALL.                       347
gentlemen whom he knew to be personally hostile to his administration. Whatever, therefore, might be the grumblings of the discarded
Secretaries, this step of the President cannot but be regarded as judicious and wise. Wolcott thought, too, that General Marshall would
" find himself out of his proper element " in his new office.*  In this,
too, he proved to be mistaken. No man was more familiar with, and
thoroughly master of, the whole question of our foreign relations; and
these he managed during the year of his administration of the State
department, with signal ability and success.  His conduct in this
respect gave the most entire satisfaction, not to the President only,
but to the whole American people. Mr. Adams, in his celebrated Cunningham letters, though so far carried away by his private feelings as
to hint the personal incompetency of Col. Pickering, pays a deserved
tribute to General Marshall. " Suppose I should tell you," he says,
"that the studies of his (Pickering's) early youth, and of his riper
years, had not been competent to the profound investigations which
his office required.  We had discussions of great importance with
France, England, and Spain, especially the two former, involving questions respecting neutral rights, respecting British and tory claims, of
ante-revolutionary debts. I could get nothing done as I would have
it. My new minister, Marshall, did all to my entire satisfaction."
The biographer of Wolcott explains this in a manner far from complimentary to Mr. Adams. With regard to Marshall's doing every thing
to the President's satisfaction, he remarks with no little asperity"Every one who knew that great man, (Marshall,) knew that he possessed, to an extraordinary degree, the faculty of putting his own
ideas into the minds of others, unconsciously to them. The secret of
Mr. Adams' satisfaction was, that he obeyed his Secretary of State
without being conscious of it." t But this we are led to believe is
also a calumny.
I shall not dwell upon the party discussions and the political history
of this period, which, however interesting in itself, will shed no new
light on the character of Chief-Justice Marshall. It is sufficient to
say that he continued his laborious and useful services as the head of
the State department, down to the close of Mr. Adams' administra* Letter to Fisher Ames, August 10th, 1800. 2 Gibb's Wolcott, 402.
f 2 Gibbs' Wolcott, 349, 350.




348             LIVES OF TIE CHIEF-JUSTICES.
tion, on the 4th of March, 1801, although in the mean time appointed
to that high judicial station which he so long adorned.  It may also
be mentioned, as a fact highly honorable to the character of Marshall,
and as exhibiting alike the elevation of his mind and the moderation
of his sentiments, that though warmly attached to President Adams,
and though the circumstances of his appointment successively to the
War and SL.ite departments were calculated to excite unpleasant feelings between him and his predecessors, yet in fact they did not awaken
the least degree of political rivalry or personal resentment.  On the
contrary, he soon found himself upon the most friendly and cordial
terms with his predecessors, and in the enjoyment of the unlimited
confidence of the public.*
Upon the resignation of Chief-Justice Ellsworth, much anxiety was
manifested respecting his successor. It was supposed by many that
Judge Paterson, then one of the Associate-Justices of the Supreme
Court, would be appointed, by others the name of General Pinckney
was mentioned.  Marshall himself, on being consulted by the President, unhesitatingly recommended Judge Paterson.  But Mr. Adams
objected to this nomination, assigning as a reason that he could not
make it without wounding the feelings of Judge Cushing, who was an
old friend and the senior Judge on the bench.t  Thereupon lie appointed Mr. Jay, who declined. As soon as this fact was known the
President promptly sent in the name of Marshall to the Senate, who
was unanimously confirmed, and on the 31st January, 1801, commissioned as Chief-Justice of the United States. The appointment was
not made, it appears, without some cavilling from those peculiar
friends of the President, who manifested so great a proclivity to censure every act of his administration.  The Ex-Secretary of War,
McHenry, writes with much asperity to Wolcott: " Mr. Adams, it
strikes me, has committed another blunder, but, it is true, one not alto* "I have often listened," says Judge Story, "to the spontaneous praise bestowed on Mr. Marshall by Col. Pickering, in his own peculiar circle of friends,
with unmixed delight. It was full, glowing and affecting. It was a tribute from
one of such sincerity of thought and purpose, that praise, even when best deserved,
came from his lips with a.studied caution of language. His conversation, always
instructive, on these occasions rose into eloquence, beautiful, nay touching, with
a moral sublimity."
t 26 Vol. North American Review, 32.




JOHN MARSHALL.                      319
gether so rare. I mean in rewarding dear friends, and in neglecting
old ones. Here it was expected by every body that he would have
named Mr. Paterson to the vacant seat on the bench, except by
Mr., who thought that he should have been appointed, and by
me, who thought the President should have appointed himself. *  The
"blunder" of Mr. Adams proved to be a most fortunate one for the
country. Indeed, reflecting men of all parties since that day have
been inclined to regard this "blunder" as an act of rare sagacity
and intuitive discernment of character. He would be a bold man
who should now assert that from among all the able and eminent men
who then sustained the administration, or belonged to either wing of the
Federal party, (and none other could of course have expected the appointment,) the President might have made a wiser and more judicious
selection, or one which would have shed greater lustre upon the judicial history of the country. It was something of this feeling, which
after the experience of more than a quarter of a century had demonstrated the wisdom of the choice, prompted the words of President
John Q. Adams, who on enclosing a judicial commission to a gentleman of exalted professional reputation, happily alludes to the appointment by his father of Chief-Justice Marshall: " If neither of us," he
remarks, "had ever done any thing else to deserve the approbation of
our country, and of posterity, I would proudly claim it of both, for
these acts, for my father and myself." t
Chief-Justice Marshall took his seat on the bench of the Supreme
Court at the February term, 1801. His associates were WILLIAM
USHING, of Massachusetts, the only remaining member of the Court
originally appointed by Washington; WILLIAM PATERSON, of New
Jersey, a lawyer of learning and ability, and a statesman of large experience; SAMUEL CHASE, of Maryland, undoubtedly the most vigorous and original intellect next to that of Marshall on the bench;
BUSHROD WASHINGTON, of Virginia, trained in the same school with
the Chief-Justice, and bringing with him from the bar of his native
State a reputation as well earned as it was afterwards nobly sustained;
and ALFRED MOORE, of North Carolina,t then recently appointed to
fill the vacancy occasioned by the death of the lamented Iredell.
* 2 Gibbs' Wolcott, 464.   t Judge Story's Sketch of Marshall.
+ Very little appears to be known of this gentleman. He was appointed by




350             LIVES OF THE CHIEF-JUSTICES.
Such was the Supreme Court of the United States at the time
Marshall began to preside in it in the winter of 1801. Its sessions
were then, for the first, held at the new city of Washington, to which
the seat of government had been removed the previous summer.
Most of the old members of the bar who figured prominently as advocates at the organization of the Court were still in active practice.
Tile younger race of lawyers, who a few years later composed that
brilliant galaxy which centered around the bar of the Supreme Court,
such as Pinkney, Wirt, Jones, Hopkinson, Emmett, Webster, and
Clay, had not yet entered upon this splendid forum of intellectual
effort. Their senior brethren-the veterans of the bar-the men who
thronged the precincts of the Court in Jay's and Rutledge's timeTilghman, Dexter, Lewis, Rawle, Dallas, Martin, Duponceau, Ingersoll-few of whom had yet begun to lag " superfluous on the stage,"
were the counsel mostly engaged in the earlier causes argued before
Chief-Justice Marshall.
Before Marshall came to the bench it had been made a question
whether the Judges could be lawfully required, under their commissions, to hold the Circuit Court. The question was disposed of for
the time by the new bill for " the more convenient organization of the
Courts of the United States," passed among the last acts of President
Adams' administration.* This bill relieved the Judges from Circuit
duty entirely, and confined them to attendance at the sessions of the
Supreme Court, two of which were required to be held annually at
the seat of government. The bill had been in operation but little
more than a year when it was repealed, under Mr. Jefferson's administration, andi the old circuit system restored.t  The repeal of the act
having assumed a political aspect, an animated and powerful debate
sprung up in the House of Representatives, in which the opponents
of the repeal maintained with persevering boldness and vigor that by
the Constitution Congress could not require the Judges of the Supreme
President Adams toward the close of the year 1799, though the records of the
State department do not show the date of his commission. One or two of his
opinions are to be found in the reports. He remained but a few years on the
bench, and resigning, was succeeded, March 26, 1804, by William Johnson, of
South Carolina.
* Act of February, 13th, 1801.
t Act of April 29th, 1802.




JOHN MARSHALL.                     351
Court to sit at the Circuit. This, also, was Marshall's opinion. On
the passage of the act of repeal, however, instead of disregarding
the act entirely, he adopted a course which, while it perfectly vindicates the independence of his character, exhibits at the same time the
extreme caution of his temper. He wrote, it is said,* a circular letter
to all the other Judges of the Supreme Court, stating that upon a full
examination of the subject, he had come to the conclusion that the
Judges of the Supreme Court could not constitutionally be required
to hold any other sessions than those of the Supreme Court, or perform any other judicial duty; and he accordingly stated to his brethren, that if they concurred in this opinion, he would decline to sit in
the Circuit Court and risk the consequences. The answer returned
by his brethren was that they agreed with him in opinion; but considering the question had been settled to the contrary by the acquiescence of the Judges in going the Circuit prior to 1801 they advised
that it should not now be disturbed, but should be considered for all
practical purposes as finally put to rest. The Chief-Justice thereupon
proceeded to hold the Circuit Court for the Virginia district. The
question of jurisdiction, and his right to sit as Circuit Judge without
a separate commission for that purpose, was raised, and decided by
him in the manner indicated by his associates. The case came up for
review to the Supreme Court, and the decision, in which Marshall declined taking part, was affirmed; on the sole ground, as stated by Mr.
Justice Paterson who delivered the opinion of the Court, that practice and acquiescence, for a period of several years, commencing with
the organization of the judicial system, had fixed the construction,
and that this cotemporary and practical exposition was too strong to
be shaken or controlled.t
I have elsewhere alluded to the immense mass of labors performed
by the Chief-Justice, during his service on the bench of the Supreme
Court-extending through a continuous period of nearly thirty-five
years-and to the number, extent and variety of his decisions. These
decisions will be found mostly collected in the nine volumes of Cranch's
Reports of the Supreme Court, the twelve volumes of Wheaton, and
the first nine volumes of Peters; and his decisions at Circuit in the
* 3 New York Review, 347.
t Stuart vs. Laird, 1 Cranch Reports, 299.




352             LIVES OF TIIE CHIEF-JUSTICES.
two volumes of Brockenbrough. From this mass of material it is of
course impossible to do more than call the reader's attention to a few
selections of the most important and prominent cases-such as cases
of prize and admiralty, cases turning upon questions of great public or
national interest, and, above all, those involving principles of constitutional law. In regard to the latter class of cases especially it may
with truth be said that the labors of Chief-Justice Marshall have raised
an enduring, an imperishable monument to his fame. No jurist, living
or dead, can point to a nobler or a prouder record; and the remark of
that one of his associates who knew him most intimately, and who so
justly appreciated the value of his friendship,* is nothing but the language of sober truth,-that if all others of his juridical arguments had
perished, his luminous judgments, on these occasions, would have given
an enviable immortality to his name. From the same excellent
authority, we gain something of an idea of the absolute superiority,
and the controlling power of Marshall's mind in all these deliberations
and decisions upon questions of Constitutional law.  "Though we
would not be unjust," he says, "to those learned gentlemen who have
from time to time been his associates on the bench, we are quite sure,
that they would be ready to admit, what the public universally believed,
that his master mind has presided in their deliberations, and given to
the results a cogency of reasoning, a depth of remark, a persuasiveness
of argument, a clearness and elaboration of illustration, and an elevation and comprehensiveness of conclusion, to which none others offer
a parallel. Few decisions upon constitutional questions have been
made, in which he has not delivered the opinion of the Court; and in
these few, the duty devolved upon others to their own regret, either
because he did not sit in the cause, or, from motives of delicacy, abstained from taking an active part." t
One of the most important of these cases of constitutional construction, as it is the earliest in point of time, is the case of Marbury is.
Madison,t argued and decided at the term of the Court held in February, 1803. In pronouncing the opinion of the Court in this some* "There is no one on earth," says Story, in a letter to Miss Martineau, " whose
friendship I value more than his; there is no one whose praise is to me so touching and so deer."
t 26 North American Review, 36.    $ 1 Cranch Reports, 137.




JOHN MARSHALL.                          353
what noted case, the Chief-Justice clearly and distinctly lays down,
and sustains by a chain of irresistible logic, what has ever since been
regarded as the fundamental principle, the very sheet anchor of the
Constitution, namely, that it is the right and the duty of the judicial
department to determine the constitutionality of a legislative act, and
if such act be found repugnant to the provisions of the Constitution,
to declare it null and void.
This may be considered as the first authoritative exposition of the
Court on this subject. The principle had, indeed, been asserted at an
earlier period by Judge Paterson at the Pennsylvania Circuit in the
case of Horne's Lessees vs. Dorrance;* but it does not appear to have
been considered by the professional mind as settled. In the subsequent case of Calder et ux. vs. Bull,t it was incidentally drawn into
the discussion, and while Judge Iredell intimated the opinion that if
an act of Congress, or of the Legislature of a State violated a provision of the Federal Constitution, such act was unquestionably void,
and the Court, in a very clear case, had authority so to declare it;
yet, on the other hand, Judge Chase avoided expressing his views on
the subject, remarking: "Without giving an opinion, at this time,
whether the Court has jurisdiction to decide that any law made by
Congress is void, I am fully satisfied that this Court has no jurisdiction to determine that any law of any State Legislature contrary to
the Constitution of such State is void."t
* 2 Dallas Reports, 304.
t 3 Dallas Reports, 386.
I This early view of Judge Chase, that the Supreme Court cannot declare a
State law void as being repugnant to a State Constitution is sustained by subsequent decisions. " The Court," says Judge Baldwin, delivering the judgment in
Jackson vs. Lamphire, 3 Peters, 280, " has no authority on a writ of error to a
State Court to declare a State law void on account of its collision with a State
Constitution, it not being a case embraced within the judiciary act which alone
gives power to issue a writ of error to a State Court." A similar opinion is expressed, as the judgment of the Court, by Mr. Justice Washington in Satterlee vs.
Matthewson, 2 Peters, 413; though, at the same time, he does not deny that a
Circuit Court of the United States, sitting to administer the laws of a State, may
give to the Constitution of that State a paramouut authority over a legislative
act passed in violation of it. But this, it seems, is only in case the State tribunals
have not themselves passed upon the constitutionality of the law. When they
have done so, a rule of decision is furnished to which the Federal tribunals will
23




354              LIVES OF THE CHIEF-JUSTICES.
The same judge in a subsequent case * had gone so far as to intimate that " the general principles contained in the Constitution are
not to be regarded as rules to fetter and control; but as matter
merely declaratory and directory;" and in the same opinion he adds,
that even though it might be alleged that " all acts of the Legislature
in direct opposition to the provisions of the Constitution would be
void; yet it still remains a question where the power resides to declare
them void."
This grave question, lying at the very root of the power and independence of the Federal judiciary, met the Chief-Justice in the case of
Marbury vs. Madison, and its consideration forms no inconsiderable
portion of one of his earliest constitutional decisions.  A more momentous question never engaged the attention of that, or any other,
tribunal; and its final decision was such as to satisfy the bench, the
bar, and the country, and to put the question at rest then and for
ever.  A brief notice of the case is all that will be given, leaving the
professional reader to consult it more fully in the report.
Just before Mr. Adams retired from office he appointed some
Federal justices of the peace for Alexandria, in the District of Columbia.  The commissions had been signed and sealed, but not delivered.
Jefferson succeeding to the presidency, found these commissions on the
table of the department of state and forbade their delivery. Marbury, named in one of these commissions, applied to the Supreme
Court by his counsel, Mr. Lee, of Virginia, for a mandamus to the
Secretary of State (Mr. Madison) to deliver the commission intended
for him.
In the opinion of the Chief-Justice in this interesting case, he discusses in their order the following propositions, and arrives at these
conclusions:adhere. Though the Supreme Court had repeatedly declared that it would conform to the construction of the statutes of a State made by its own tribunals;
yet in the case of Bank of Hamilton vs. Dudley's Lessees, 2 Peters, 492, a distinction was attempted to be made by counsel, between the exclusive power of the
State Courts to construe legislative acts, and the power to construe the State
Constitution by giving effect to an unconstitutional law. But the Chief-Justice
refused to recognize such distinction. " The judicial department of every government," he remarks, "is the rightful expositor of its laws; and emphatically of
its supreme law."
* Cooper vs. Telfair, February Term, 1800. 4 Dallas Reports, 14.




JOHN MARSHALL.                            355
1st. That the applicant has a right to the commission he demands.
2d. That this right having been violated, the laws of his country
afford him a remedy.
3d. That the case in its nature is one for a mandamus.
4th. But, that being an original process, the Supreme Court has no
jurisdiction to issue it, and the act of Congress conferring such jurisdiction, not being authorized by the Constitution, is null and void.*
The application was accordingly denied.
It will be observed that the really important part of the decision is
in regard to the constitutionality of the act of Congress and the power
of the Court over it. It in reality involved the momentous question
whether the Constitution was to be regarded as an absolute limit to
* Mr. Jefferson complained with some degree of asperity of the decision by the
Chief-Justice of the first three points above mentioned.
The cause of his complaint seems to have been, that the Chief-Justice really
began at the wrong end of the argument. He held that it would have been sufficient to determine the question of jurisdiction alone, without travelling out of the
case to determine what the law would have been, if the court had jurisdiction.
Many years afterwards Mr. Jefferson alludes to this "very irregular and very
censurable practice," as he terms it, in a letter to Judge Johnson touching this
very case:-" The court determined at once," he says, " that, being an original
process, they had no cognizance of it; and there the question before them was
ended. But the Chief-Justice went on to lay down what the law would be had
they jurisdiction of the case; to wit, that they should command the delivery.
The object was clearly to instruct any other court having jurisdiction what they
should do if Marbury should apply to them. Besides the impropriety of this
gratuitous inference, could anything exceed the perversion of the law?"-See
Jefferson's Correspondence, Vol. III. p. 372.
I do not regard these inferences of Mr. Jefferson as entirely just toward Marshall, though there may be great reason to doubt the correctness of the decision
on these points. Jefferson's argument, and if not sound and. conclusive, it is certainly plausible, was, that the commissions being in the executive offices, were
deemed to be in the hands of the President, and like a deed were valid and operative only on delivery. The decision of the court on these points he considered
" an obiter dissertation of the Chief-Justice," and as such, he intimates, that he
does not regard it as furnishing a rule to govern his official conduct. The reason
of Mr. Jefferson's refusing to deliver these commissions, or sanctioning what he
calls Mr. Adams' "midnight appointments," may be drawn from the following
hint, contained in a letter to Gerry:" Mr. Adams' last appointments, when he
knew he was naming counsellors and aids for me and not for himself, I set aside
as far as depends on me."-3 Jefferson's Correspondence, 434.




356              LIVES OF THE CHIEF-JUSTICES.
legislative power; or whether it was, as Judge Chase had pronounced it,
"declaratory and directory" merely, and, as in England, at the mercy
of the legislature;-whether, in short, the judiciary or the legislature
were to be the interpreters of the Constitution.*  "The powers of the
Legislature," says the Chief-Justice; "are defined and limited. To
what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed
by those intended to be restrained? The distinction between a government of limited and unlimited powers is abolished, if these limits do
not confine the persons on whom they are imposed. It is a proposition too plain to be contested, that the Constitution controls any legis
lative act repugnant to it, or, that the Legislature may alter the Colstitution by an ordinary 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 legislative 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 permanent 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, therefore, to be lost sight
of in the further consideration of this subject."
This proposition established, the conclusion inevitably and irresistibly
follows:
"It is emphatically the province and duty of the judicial departIt involved, perhaps, to some extent the further question presented by Mr.
Calhoun in his celebrated nullification resolutions of 1833, namely, whether thi
general government is " the final judge of the powers delegated to it,' or. whether,
in the language of these resolutions, "as in all other cases of compact amoil
sovereign parties, without any common judge, each has an equal right to jadelg
for itself, as well of the infraction as of the mode m  and measure of redress/"




JOHN MARSHALL.                          357
ment 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 court must decide on the operation of
each. So if a law be in opposition to the Constitution," &c., &c.
These conclusions have never been shaken, or even doubted, since
that day.  On the contrary, they have been affirmed and reiterated,
and the power of the court extended further; it being held to embrace a jurisdiction, not merely to declare an act of the national legislature void, but also to review, on appeal from  the highest court of
law or equity of a State, and declare void any statute of such State on
the ground of its being repugnant to the Constitution, treaties, or
laws of the United States, where the decision of the State court has
been in favor of the validity of such statute.*
It is interesting to notice the fact that in the case of Marbury vs.
Madison-among the earliest of his constitutional decisions-the
Chief Justice adheres to a strict construction.  Indeed, he might be
said, in regard to that particular case, to justify, to some degree at
least, the suspicions of the more ardent Federalists as expressed by
Wolcott, that he would "construe the Constitution like a penal
statute;" that is to say, that he would not hesitate to declare even an
act of Congress void unless he read the clear warrant for it in the very
letter of the Constitution-a strictness, however, which, it must be
confessed, he did not on all occasions so rigidly adhere to.
The general views of Marshall in the exposition of Constitutional
law were again expressed in the case of the United States vs. Fisher,
argued at the February term     of the Supreme Court, in 1805.t    A
* See the elaborate opinion of Mr. Justice Story in Martin, heir-at-law of Fairfax vs. Hunter's Lessees, 1 Wheaton, 304, 323, 352. The Virginia Court of
Appeals in that case had refused obedience to the mandate of the Supreme Court
of the United States, which reversed the judgment of the State Court, alleging
that so much of the act of Congress as gave the Supreme Court appellate jurisdiction over a State tribunal was not warranted by the Constitution.
The constitutional authority of the Supreme Court over the State tribunals was
again largely discussed, and reaffirmed by Chief-Justice Marshall in the case of
Cohens vs. Virginia, 6 Wheaton, 264, which will be hereafter noticed. That case
decided that this appellate jurisdiction extended to a suit where a state was a
party. And see note, ante, page 353, as to the power of the court to declare an
act of a State Legislature void, as being repugnant to a State Constitution.
t 2 Cranch Reports, 358.




358             LIVES OF THE CHIEF-JUSTICES.
question had arisen whether the act of Congress giving a preference
to the United States over the general creditors of a bankrupt was
warranted by the Constitution. In the consideration of this question
the Chief-Justice remarks: " That as the court can never be unmindful of the solemn duty imposed on the judicial department when a
claim is supported by an act which conflicts with the Constitution, so
the court can never be unmindful of its duty to obey laws which are
authorized by that instrument. In the case at bar, the preference
claimed by the United States is not prohibited; but it has been truly
said that under a constitution conferring specific powers, the power
contended for must be granted, or it cannot be exercised."  The ChiefJustice then considers the grant of power, and deduces it from that
clause in the Constitution which confers on Congress authority to
make all laws which shall be necessary and proper to carry into execution the powers vested by the Constitution in the government of the
United States.  " The government," he remarks, " is to pay the debt of
the Union, and must be authorized to use the means which appear to
itself most eligible to effect that object."  We shall hereafter have
occasion to notice one or two very important decisions affirming the
constitutionality of acts, the warrant for which was to be found only
in a still more liberal construction of this section.
The case of the United States vs. Judge Peters,* at the session of
the Court in 1809, afforded the Chief-Justice the opportunity of expressing his views in regard to the independence of the Federal tribunals, of all State legislation. The doctrine which he laid down in that
case was that the Legislature of a State could not annul the judgment,
or determine the jurisdiction of the courts of the United States, or
destroy rights acquired under those judgments. "If it were otherwise," he remarks, " the Constitution itself becomes a solemn mockery;
and the nation is deprived of the means of enforcing its laws, by the
instrumentality of its own tribunals."  The supremacy of the Federal
Judiciary over the State tribunals in cases of constitutional construction, and its independence of State legislation, were fixed and prominent ideas in the mind of Marshall, and were always regarded by him
as fundamental parts of the Federal system.t
* 5 Cranch's Reports, 115.
t It was afterwards adjudged in McKim vs. Voorhies, 7 Cranch, 279, that a




JOHN MARSHALL.                        359
No clause of the Constitution more deeply affects the legislative authority of the states, than that which prohibits a State from passing
any law impairing the obligation of contracts. Nor has any been the
subject of more protracted litigation, or of more able and learned
discussion. One of the earliest of the cases involving this question
was the case of Fletcher vs. Peck,* brought up on a writ of error from
the Circuit Court of Massachusetts, and known by the name of the
"Georgia Claim."    This cause was twice argued in the Supreme
Court, first at the February term, 1809, and again a year afterwards.
The ability of the argument was fully commensurate with the novelty
and interest of the questions discussed. Not a word need be added in
regard to it, further than to mention the names of the counsel who
appeared on either side. For the plaintiff in error, on the first argument, was Mr. Luther Martin, and for the defendant, John Q. Adams,t
and Mr. Harper of Maryland.   On the second argument, Mr. Adams
was replaced by Joseph Story, soon about to take his seat in that august tribunal, which he now for the first time addressed.
One of the questions presented by this case involved a discussion
of the nature of a public grant of lands, and the effect of a
repeal of the grant by a subsequent Legislature.     So much of
the case as is necessary to understand this question, may be stated as
follows: The State of Georgia had granted a tract of five hundred
thousand acres of land to the " Georgia Company."  The defendant,
Peck, claiming title under the company, executed a deed of part of
these lands to FIetcher, containing among other covenants, one, that
all the title which Georgia ever had in the premises had been conveyed
to Peck. The State of Georgia prior to this conveyance had passed
an act annulling and declaring void the act under which the grant was
made. Fletcher accordingly sued Peck for a breach of covenant, and
State Court has no authority to enjoin a judgment of the Circuit Court of the
United States, or stay proceedings under it. It was also determined in Slocum
vs. Mayberry, 2 Wheaton, 1, that no State tribunal could interfere by process of
replevin, injunction, or otherwise, with a seizure of property made by revenue officers under the laws of the United States.
* 6 Cranch's Reports, 87.
t The name of Mr. Adams appears more than once as counsel in the Supreme
Court, prior to this period. He was engaged in one or two important causes
argued in 1804, and reported in the second volume of Cranch's Reports.




360             LIVES OF THE CHIEF-JUSTICES.
the point presented upon this branch of the case was, whether the
Legislature of Georgia could constitutionally repeal the act, so as to
rescind the sale made under it.
In pronouncing his decision upon this grave question, the Chief-Justice laid down the doctrine, which it is believed has never since been
questioned or shaken, that a grant of lands is a contract within the
meaning of the Constitution, and that when a State law was in its nature a contract, and absolute rights have vested under it, a repeal of
the law could not divest these rights, or impair the title so acquired.
"Since then, in fact," he remarks, "a grant is a contract executed,
the obligation of which still continues, and since the Constitution uses
the general term contract, without distinguishing between those which
are executory and those which are executed, it must be construed to
comprehend the latter as well as the former. A law annulling conveyances between individuals and declaring that the grantors should
stand seized of their former estates notwithstanding these grants,
would be as repugnant to the Constitution as a law discharging the
vendors of property from the obligation of executing their contracts
by conveyances. It would be strange if a contract to convey was secured by the Constitution, while an absolute conveyance remained
unprotected."
Having established the general proposition as regards individuals,
the Chief-Justice then proceeds to consider and establish the broader
doctrine that a grant from a State is not to be excluded from the operation of the constitutional provision. In regard to this subject he
uses the following significant language: "Whatever respect might
have been felt for the State sovereignties, it is not to be disguised that
the framers of the Constitution viewed with some apprehension, the
violent acts which might grow out of the feelings of the moment;
and that the people of the United States, in adopting that instrument,
have manifested a determination to shield themselves and their property from the effects of those sudden and strong passions to which
men are exposed. The restrictions upon the legislative power of the
states are obviously founded in this sentiment; and the Constitution
of the United States contains what may be deemed a bill of rights for
the people of each State." *
* In an opinion delivered by the Chief-Justice in a subsequent case, he enforces




JOHN MARSHALL.                         361
I have observed that Judge Story was engaged in the argument of
this interesting cause, the first, and I believe, the only one ever argued
by him before that tribunal, of which he soon afterwards became a member. Three years before, he had come to Washington, attracted by business or curiosity, or both, for the first time in his life, and had made the
acquaintance of most of the distinguished persons then in the capital.
The next winter he repeated his visit.  The Supreme Court at that
time consisted of the Chief-Justice and six associates, Cusling, Chase,
Washington, Livingston, Johnson, and Todd.*    Story soon made the
acquaintance of most or all of these gentlemen, including the Chief-Justice. A description of the person of Marshall, as he appeared at that
time, and the impression which a first interview left upon the mind of
Story, will not be without interest to the reader. It is contained in a.
letter to a friend, written from Washington in the winter of 1808:
"Marshall is of a tall, slender figure, not graceful nor imposing, but
erect and steady.  His hair is black, his eyes small and twinkling, his
forehead rather low, but his features are in general harmonious.  His
manners are plain, yet dignified; and an unaffected modesty diffuses
itself through all his actions. His dress is very simple, yet neat; his
language chaste, but hardly elegant; it does not flow rapidly, but it
seldom wants precision.  In conversation he is quite familiar, but is
occasionally embarrassed by a hesitancy and drawling.  His thoughts
are always clear and ingenious, sometimes striking, and not 6fteu
inconclusive; he possesses great subtilty of mind, but it is only occasionally exhibited. I love his laugh-it is too hearty for an intriguer —
and his good temper and unwearied patience are equally agreeable on
similar views, declaring that the State of New Jersey could not, consistently with
the Constitution of the United States, pass an act, rescinding a former act, whicl
provided that certain lands which should be purchased for the Indians should not
thereafter be subject to any tax, inasmuch as such act was a contract, within the
meaning of the Constitution. See State of New Jersey vs. Wilson, 7 Cranch Rep.,
164
* Mr. Brockholst Livingston, of New York, had been appointed in place of
Judge Paterson, deceased, on the 10th November, 1806; Mr. William Johnson, of
South Carolina, in place of Judge Moore, resigned, on 26th March, 1804, and Mr.
Thomas Todd, of Kentucky, had been appointed on the 3d March, 1807, under the
act then lately passed creating another Circuit, and an additional Justice of the
Supreme Court.




362                LIVES OF TIIE CIIIEF-JUSTICES.
the bench and in the study. His genius is, in my opinion, vigorous
and powerful, less rapid than discriminating, and less vivid than uniform in its light.  He examines the intricacies of a subject with calm
and persevering circumspection, and unravels the mysteries with irresistible acuteness.   He has not the majesty       and compactness of
thought of Dr. Johnson; but in subtle logic he is no unworthy disciple of David Hume." *
The artless simplicity of Marshall's manners and conversation seems
* In the same letter we have Story's first impressions of Marshall's associates on
the bench:
" Washington is of a very short stature and quite boyish in his appearance.
Nothing about him indicates greatness; he converses with simplicity and frankness. But he is highly esteemed as a profound lawyer, and I believe not without
reason. His written opinions are composed with ability, and on the bench he exhibits great promptitude and firmness in decision. It requires intimacy to value
him as he deserves.
" Livingston has a fine Roman face; an aquiline nose, high forehead, bald head,
and projecting chin, indicate deep research, strength, and quickness of mind. I
have no hesitation in pronouncing him a very able and independent judge. IIe
evidently thinks with great solidity, and seizes on the strong points of argument.
He is luminous, decisive, earnest and impressive on the bench. In private society
he is accessible and easy, and enjoys with great good humor the vivacities, if I
may coin a word, of the wit and the moralist.
" Of Chase I have formerly written. On a nearer view I am satisfied that the
elements of his mind are of the very first excellence; age and infirmity have in
some degree impaired them. Iis manners are coarse and in appearanc~ harsh;
but in reality he abounds in good humor. He loves to croak and grumble, and in
the very same breath he amuses you extremely by his anecdotes and pleasantry.
His first approach is formidable, but all difficulty vanishes when you once understand him. In person, in manners, in unwieldy strength, in severity of reproof, in
real tenderness of heart, and above all in intellect, he is the living, I had almost
said, the exact image of Samuel Johnson. To use a provincial expression, I like
him hugely.
~ I ought not to pass by Judge Johnson, though I scarcely know how to exhibit
him individually. He has a strong mathematical head, and considerable soundness of erudition. He reminds me of Mr. Lincoln, and in the character of his
mind he seems to me not dissimilar. He has, however, less of metaphysics and
more of logic.
"This is the first time of Judge Todd's appearance on the bench, and as he is a
modest, retired man, I cannot delineate him. He does not appear to want
talents."-Life and Letters of Story, Vol. I. page 1;7.




JOHN MARSHALL.                          363
to have been one of the first things to attract the attention of the
stranger.  All who ever approached him have recorded this as among
their earliest and most agreeable impressions.  Nothing could be more
plain and unpretending than his ordinary intercourse with society.
He never talked for the sake of talking, never for display. In his
conversation he seemed to forget himself, and be intent only on communicating or receiving pleasurable sensations or information.   Conversation with him was a real interchange of ideas, and he was quite
as well pleased to listen as to be listened to.  " Thus," says the writer
of a recent notice of the Chief-Justice, "Nothing could well be wiser
than his usual conversation.   It was the most artless and yet the
soundest sense, rendered agreeable by the greatest amenity of style.
Expression he seemed never to have studied-no trick nor even ornament of words, beyond such as were just to the purpose and clearly
conveyed his thought: but, of course, to a height of reason and a
gentleness of heart like his, there was not wanting an aptness of diction which made their precisely appropriate vehicle, their natural language, and, as such, had its grace in its fitness-the only species of
beauty that it could well admit." *
* The same writer has drawn a sketch of his personal appearance, which, to say
the least, is not very flattering. Never having seen the Chief-Justice, I am unable to say how near it accords with the truth:
" As to face and figure, Nature had been equally little at pains to stamp with
any princely effigy of what pleases, the virgin gold of which she had composed
his head and heart. Except that his countenance was thoughtful and benignant,
it had nothing about it that would have commanded a second look. Separately,
his features were but indifferent; jointly, they were no more than commonplace.
Then, as to stature, shape, and carriage, there was nothing in him that was not
rather the opposite of commanding or prepossessing: he was tall; yet his height
was without the look of either strength or lightness, and gave neither dignity nor
grace. His body seemed as ill as his mind well compacted; he not only was
without proportion, but of members singularly knit, that dangled from each other
and looked half dislocated. Habitually, he dressed very carelessly; in the garb,
but I should not dare to say in the mode, of the last century. You would have
thought he had on the old clothes of a former generation, not made for him by
even some superannuated tailor of that period, but gotten from the wardrobe of
some antiquated slop-shop of second-hand raiment. Shapeless as he was, he would
probably have defied all fitting, by whatever skill of the shears; judge, then, how
the vestments of an age when, apparently, coats and breeches were cut for nobody
in particular, and waistcoats were almost dressing-gowns, sat upon him."




364             LIVES OF THE CHIEF-JUSTICES.
The trials growing out of the alleged treasonable enterprise of
Aaron Burr form one of the most notable events in the political history of the country, as well as one of the most interesting chapters in
the judicial career of Chief-Justice Marshall. The connexion of the
Chief-Justice with these trials, and his opinions upon the law of treason, as he found it limited and defined in the Constitution of the
United States, subjected him to severe criticism and animadversion at
the time; but no candid and unprejudiced mind can at this day fail to
do full and ample justice, if not to the correctness of his reasoning, at
lgast to the purity of motive, and independence of judgment which
prompted those opinions.
Burr was arrested in January, 1807, on the Mississippi; and,
having been detained awhile in custody, escaped, and was subsequently
again arrested near Fort Stoddart, on the Tombigbee River, making
his way, in disguise, to Mobile. From this place he was conducted to
Richmond, Virginia, for examination and trial on a charge of hligh
treason. The history of this matter is too well known to render it
necessary in this place to enter into the particulars of the transaction,
or the details of the evidence. From this evidence it would appear
that Burr certainly did at one time entertain visionary notions of his
ability to produce a revolution which should result in the dismemberment of the Union and the erection of a Western Confederacy beyond
the Alleghanies; and that, finding this enterprise somewhat arduous
for his means, he abandoned it, and sought the gratification of his
restless and towering ambition in a scheme to invade Mexico and make
himself master of those fair dominions.*
Before alluding to the examination and trial of Burr, it will be
proper to notice the case of two of his alleged accomplices, brought
before the Supreme Court at the February term, 1807, in which the
Chief-Justice, after full argument and careful deliberation, delivered
his opinion upon the construction of the law of treason as defined by
the Constitution. This case is reported under the title of ex parte
Bollman and ex parte Swartwout.t  It was argued and decided before the preliminary examination of Col. Burr, and the opinion delivered by the Chief-Justice may be taken as his earliest exposition of
the law of treason.
* See testimony on Burr's trial.  t 4 Cranch's Reports, 75 to 136.




JOHN MARSHALL.                      365
Dr. Erick Bollman and Samuel Swartwout had been arrested on a
warrant issued January 27th, 1807, and committed to prison by order
of the Circuit Court for the District of Columbia, on a charge of
treason in being concerned in Burr's conspiracy. On motion of the
prisoner's counsel, Mr. Charles Lee and Mr. Harper, and after a full
argument of the question by these gentlemen, the Supreme Court
granted a habeas corpus to bring up the bodies of Mr. Swartwout
and Dr. Bollman. The return to the writ was made on the 16th of
February, whereupon Mr. Lee moved that the prisoners be discharged
or admitted to bail. He was ably supported in this motion by Mr.
Harper, Mr. Key, and Mr. Luther Martin, who contended with great
force and earnestness, that the commitment was illegal upon its face,
and that the testimony upon which it was made, was not sufficient to
make out a prima facie case of treason. To this argument Mr. Caesar
A. Rodney, the Attorney-General of the United States, and Mr.
Jones, the attorney for the District of Columbia, replied with equal
vigor and ability. Chief-Justice Marshall delivered the opinion of the
Court on the 21st February, granting the motion of the counsel for
the prisoners, and discharging them from custody.
I have alluded to this case for the purpose of elucidating more
clearly the mode in which the Chief-Justice construed the law of treason; and also as introductory to that important trial at which a few
weeks later he was called upon to preside-the greatest trial known
to the criminal jurisprudence of our country-which brought to the
bar under an indictment for high treason a man who had recently held
the second office under the Government, and which called out a display of learning, genius, eloquence, andjaridieal wisdom, rarely equalled
in this or any other country.
The Constitution, the fundamental law of the United States, strictly
defines the crime of treason. Sufficiently rigorous for every political
necessity, it is scarcely susceptible of being used for the purposes of
tyranny and individual oppression. So definite are its provisions that
not even a Jeffries could pervert it. No such sanguinary judgments
as some of those which have disgraced Westminster Hall have ever
been, or ever could be, pronounced from the bench of the Federal Courts
The genius of a republic such as ours seeks and establishes another definition of treason from that which consigned a Vane, a Russell, and a




366             LIVES OF THE CHIEF-JUSTICES.
Sidney to the block; and it is really one of the proudest boasts of the
republic, that for the whole period of its existence, it has neither asked
nor needed any other definition of treason than that contained in the
plain, direct, simple constitutional provision-" Treason against the
United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort."
The case of Bollman and Swartwout did not come within this definition. Whatever might have been their connexion with Burr, and
the operations set on foot by him, yet, in the view of the Chief-Justice,
the essential fact to complete the offence-the actual levying of warwas not established. " To constitute that specific crime for which the
prisoners now before the Court have been committed," he says, " war
must be actually levied against the United States. However flagitious
may be the crime of conspiring to subvert by force the government of
our country, such conspiracy is not treason. To conspire to levy war,
and actually to levy war, are distinct offences. The first must be
brought into operation by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed."
Such was held by Judge Marshall to be the American law of treason. So widely different is it from the English statute of treason-that
statute which does not permit the subject to " imagine" the death of
the king-that the two do not seem descended from the same parent
stem. Russell died for a less crime than even conspiring to subvert
the government; the unpublished thoughts of a philosopher in his
closet caused the head of Sidney to roll from the scaffold. "Such cases
can never occur in America," says Chief-Justice Marshall in this opinion.
"To prevent the possibility of those calamities which result from the
extension of treason to offences of minor importance, that great fundamental law which defines and limits the various departments of our
government, has given a rule on the subject both to the legislature and
the Courts of America, which neither can be permitted to transcend."
It was not his intention, he remarks, in the same case, to say that
no individual can be guilty of treason who has not appeared in arms
against his country; on the contrary, if war be actually levied, all
who are actually leagued in the general conspiracy and perform aly
p:art, however minute, or however remotefrom the scene of action, are to




JOHN MARSHALL.                            367
be regarded as traitors.*  "To complete the crime of levying war against
the United States," he remarks " there must be an actual assemblage
of men for the purpose of executing a treasonable design. In the case
now before the Court a design to overturn the government of the
United States in New Orleans by force, would have been unquestionably a design, which, if carried into execution, would have been treason; and the assemblage of a body of men for the purpose of carrying it into execution would amount to levying war against the United
States; but no conspiracy for this object, no enlisting of men to effect
it, would be an actual levying of war."
The session of the Supreme Court at which the case of Bollman
and Swartwout was decided had scarcely terminated when the ChiefJustice was called upon to enter upon the trial of Aaron Burr,
the principal actor in this gigantic scheme of aggrandizement.     Col.
Burr had been brought to the city of Richmond on the 26th of
March, guarded by a military escort, and on the morning of the 31st
appeared   with his counsel, Edmund Randolph and John Wickham,
* This part of the opinion of the Supreme Court was the subject of criticism,
and much argument, in the discussions on Burr's trial, which I shall presently
notice. It was thought by counsel to countenance, in some degree, the odious doctrine of constructive treason, which the Constitution in express terms excludes.
The Chief-Justice remarks in his opinion on Burr's trial,t that four judges were
present at the decision of Bollman and Swartwout's case, and he thought them
unanimous; but that he had since reason to suspect that one of them, who was
prevented from entering into a full discussion, did not concur in this particular
point with his brethren. He adds, that for himself he then thought, and still continued to think, the opinion correct. He qualifies this, however, by remarking
that it is not to be understood as adopting the whole doctrine of the English books
on the subject of accessories to treason. Such certainly was not the fact. Those
only who perform a part, and who are leagued in the conspiracy, are declared
to be traitors. There could be no war levied, and consequently no treason, without the actual embodying of men, and a military assemblage in force. All that
the Court intended to say was, that in order to convict for treason, it was not absolutely necessary for the accused to be found actually embodied among the treasonable assemblage. He must, however, be proved to have done some act, to
have performed some part, toward the accomplishment of the particular overt
act of war laid in the indictment. These were the principles subsequently avowed, as we shall see, by the Chief-Justice on Burr's trial, and it is believed are now
to be considered the settled doctrines of the Federal Courts.
t 2 Burr's Trial, page 406. It was insisted by Burr's counsel that this part of the opinion was
extra-judicial, and not binding as authority.




368             LIVES OF THE CHIEF-JUSTICES.
Esqrs., before the Chief-Justice, who had already been seated half an
hour on the bench. The accused apologized in his blandest manner
for the delay, declaring that he had "misapprehended the hour at
which he was bound to appear," and the argument, on the motion of
Mr. Hay, District-Attorney of Virginia, and Mr. Rodney, AttorneyGeneral of the United States, to commit the accused to answer for a
high misdemeanor, and on a charge of tre(asol, immediately commenced. Burr himself, calm, collected, confident in language and
manner, addressed the court after his counsel had taken their seats, in
opposition to the motion, in one of those plausible and insinuating
arguments whose keen and subtle logic was so peculiarly his own. " According to the Constitution," he remarked, "treason consisted in acts;
that an arrest could only be justified by the suspicion of acts, whereas,
in this case, his Honor was invited to issue a warrant upon mere conjecture; that alarms existed without cause; that Mr. Wilkinson
alarmed the President, and the President alarmed the people of Ohio.
He appealed to historical facts," &c.*
The next day the Chief-Justice pronounced his opinion, and after a
careful review of the subject, decided to hold Col. Burr to answer the
charge of a misdemeanor only, without including the charge of high
treason. The offence being bailable, the accused was recognized in
the sum of ten thousand dollars.
On the 22nd of May, 1807, Burr was arraigned before Judge Marshall and his Associate, Cyrus Griffin, District Judge of Virginia, at a
Circuit Court held for that district at the city of Richmond. The
Attorney-General of the United States having withdrawn, Mr. Hay,
who conducted the prosecution, was assisted by Alexander McRae
and the afterwards celebrated William Wirt, of Virginia. Col. Burr
appeared with two additional counsel, Benjamin Botts and John
Baker, who were joined soon after by Luther Martin, of Maryland.
It is not, however, too much to say-and it is no disparagement to
the eminent abilities of either Mr. Randolph, Mr. Martin, or Mr.
Wickham-that Burr himself was his own leading counsel, and his the
keen and powerful intellect, which originated and directed the admirably arranged proceedings of the entire defence.t  Whatever may
* 1 Burr's Trial, p. 7.
t The great ability of Col. Burr as a lawyer has never been denied or ques



JOHN   MARSHALL.                         369
be thought of the guilt or innocence of Col. Burr, or whatever opinions may be entertained of his merits and character as a man, one can
scarcely help feeling a degree of interest in his defence, and it may
tioned. The "subtlest practitioner of the times," as he has been significantly
termed, he stood for some years, before his elevation to the Vice-Presidency, the
formidable rival and competitor of Hamilton at the head of the New York bar.
As a mere lawyer, Burr was greater than Hamilton; but as an advocate the latter
was no doubt superior. I have heard a gentleman,* who was well acquainted with
them both, and had frequently listened to their speeches and arguments at the
bar, describe the manner and characteristics of each as a speaker:-Hamilton, rich
in declamation, but at the same time cogent and convincing, copious in language,
earnest, and sometimes impassioned in manner.  Burr, calm, unruffled, almost
colloquial, and never attempting anything like declamation or rhetoric, but compact, nervous, and clear as a sunbeam, armed at every point, skillful in defence,
adroit in attack. His arguments to the Court, and his addresses to the jury were
always brief, but pointed and pertinent; rarely, except upon great occasions, exceeded half an hour, and yet when he closed he seemed to have said everything
material to his argument, or which the case required.
After his trial for treason, Col. Burr left the country, a broken and ruined
man. Having travelled through England and part of the continent of Europe, he
returned to New York in 1812, and opening an office at No. 12 Nassau-street, resumed the practice of the law. It had become too much the fashion, however, to
denounce and decry Col. Burr, and he never afterwards regained the confidence
of the community. Yet he was engaged upon some causes of great importance,
among which may be mentioned the celebrated Eden will case, in the year 1828,
reported under the title of Varick vs. Jackson, in 2 Wendell's New York Reports,
page 166, a case in which the New York Court of Errors, after a. most elaborate
and exhausting discussion, sustained the positions advocated by Burr, in opposition
to the general current of English authorities, namely, that an existing adverse
possession against the devisor at the time of making his will and at the time of his
death, does not affect the validity of a devise of real estate. It should be remarked, however, that the main argument in the case was made by Burr's associate
counsel, Mr. Van Buren, afterwards President of the United States, an argument
characterized by more than that gentleman's usual acknowledged legal talent. ingenuity, and great ability. At its close Mr. Burr declined arguing the principal
question, which had been so thoroughly discussed by his associate, and merely
made a few remarks upon the question of the examination of one of the witnesses.
Burr died on Staten Island, September 14th, 1836, at the advanced age of eightyfive, with scarcely a friend, says one who knew him, " to close his eyes or wipe
the dew-drops of death from his brow." He was buried at Trenton, New Jersey.
Within a few years a plain monument, with the simplest inscription, has been
placed, almost by stealth, at his grave.
* The venerable Dr. Nott, President of Union College.
24




370              LIVES OF THE CHIEF-JUSTICES.
be something like a sentiment of admiration at the display of keen
intellect and eminent skill which he developed on this occasion. Calm
and self-reliant, but without arrogance, firm, and perhaps a little
haughty in his demeanor, but generally courteous to his adversaries, and respectful to the Court, he displayed throughout the preliminary proceedings of the trial the firm temper of an elevated mind
as well as the practiced skill of the veteran lawyer. In his various
motions and brief addresses to the Court, not less than in his occasional questions to witnesses on the stand, he exhibited a shrewdness,
a depth of observation and a penetration, which certainly develop
great capacity and power of mind.*     Though Burr may have been
a bad man, no one will deny that he was an able one. His scheme to
overturn the government or dismember the confederacy, if ever entertained, was an ambition like that of a Coesar; the oriental imagination which conceived the plan of an independent empire in Mexico,
was not unworthy the genius of a Bonaparte. It would be curious to
speculate as to the probable destiny of the Spanish races on this
continent, if Burr's dreams of conquest and empire could have been
realized; though he might not have wielded the power of a Napoleon,
he had at least all the indomitable will and energy, and more than the
ability, of a Francia.
I shall not dwell upon the various circumstances attending this celebrated trial, or review in detail the many grave questions raised and
discussed before the Chief-Justice, all of which he considered with an
excessive degree of care and caution, and decided in a manner which
the accused certainly had no right to complain of. In the prosecution
of great State causes in other countries, the influence of the g-overn* Says Mr. McRae, in his able argument on the final and decisive motion in
the case: " We blame not the prisoner for exercising any of tho:e.: rights, which,
as a citizen, he is entitled to, and which it were, perhaps, a violation of duty not
to exercise; and no man's talents are more competent to distinguish and assert
his rights than those of the accused. We object not to his making any such motion as rightly belongs to his defence. But the prisoner, for the purpose of
escaping the effect of the prosecution carrying on against him, has with unexampled dexterity contrived, from the very start, almost invariably, to quit his situation as an accused. On every occasion, from the commencement to the present
moment, instead of Aaron Burr defending himself, we find him taking the high
ground of public accuser and assailing others.' —2 Burr's Trial, p. 28.




JOHN MARSHALL.                      371
ment has been usually able to make itself felt through the Court; but
the proceedings of this trial bore ample testimony that the American
judiciary were in fact, as in name, independent. No government influence could be brought to bear down the accused in that tribunal
wherein John Marshall presided, the impersonation of calm, unbending,
inflexible justice. Indeed, he did not escape the animadversions of
government for some of his rulings on this trial, as I shall presently
notice; but none of these served to move him from the strict line of
what he regarded as his duty, or to shake his firm purpose. It is, I
think, evident throughout, that, while Marshall undertook to determine every question presented to him, by the rule of established legal
principles, yet it was his aim in the practical conduct of the trial, to
see that the accused at least should not have reason to complain of
the slightest act of partiality or wrong. The principle which governed
his conduct-and I believe it must be conceded to be not only a liberal
and high-minded, but correct rule of action in the trial of a criminal,
and especially a capital offence-may be gathered from the last sentence of the following brief passage from his opinion on the motion of
Col. Burr for a writ of subpacna duces tecum, to the President of the
United States, directing him to produce a certain letter of Gen. Wilkinson, a motion fully discussed on both sides, and warmly opposed by
the counsel for the government, on the ground, among other things,
that the materiality of the letter had not been shown. The Chief-Justice, on full consideration, granted the motion. "It is not for the
Court," he remarks, " to anticipate the result of the present prosecution. Should it terminate, as is expected, on the part of the United
States, all those who are concerned in it should certainly regret, that
a paper, which the accused believed to be essential to his defence,
which may, for aught that now appears, be essential, had been withheld from him. I will not say that this circumstance would in any
degree tarnish the reputation of the Government; but I will say that
it would tarnish the reputation of the Court, which had given its
sanction to its being withheld. Might I be permitted to utter one
sentiment with respect to myself, it would be to deplore most earnestly
the occasion which should compel me to look back on any part of my
official conduct with so much self-reproach as I should feel, could 1
declare, on the information now possessed, that the accused is not en



3M72              LIVES OF THE CHIEF-JUSTICES.
titled to the letter in question, if it should really be important to
him." *
The grand jury, consisting of some of the most eminent citizens of
Virginia,t were empannelled and sworn on the day of the opening of
the Court, May 22nd, and the Chief-Justice thereupon delivered his
charge to them.   But it was not until the 24th of June, and after
many adjournments, and protracted discussions, in which Col. Burr
and all the counsel employed on either side engaged, that the grand
jury brought in indictments against Aaron Burr and Herman Blennerhasset, for both    treason  and misdemeanor.     Burr thereupon
* 1 Burr's Trial, p. 188.
t John Randolph was foreman. Burr claimed the right of challenging the
grand jurors for cause, which was allowed. He challenged, however, only two on
the panel-Mr. Giles and Col. Wilson C. Nicholas-both of whom bad served in
the Senate of the United States. The former gentleman, he remarked, had, in his
public capacity, formed a decisive opinion on the case. "He is one of the last
men," Mr. Burr observed, " on whom I wish to cast any reflections. So far from
having any animosity against him, he would have been one of those whom I
would have ranked among my personal friends." As to Col. Nicholas, Burr remarked, that " he has entertained a bitter personal animosity against me; and
therefore I cannot expect from him that pure impartiality of mind which is necessary to a correct decision." Both these gentlemen, thereupon, by consent, withdrew.
Major Eggleson, one of the jurors, hereupon came forward and remarked that
he had expressed great warmth and indignation on the subject, and believed it indelicate for him to serve. Burr, however, declined taking any exception to him,
remarking, " There is very little chance that I can expect a better man to try my
cause. His desire to be excused, and his opinion that his mind is not free upon
the case, are good reasons why he should be excused; but the candor of the gentleman in excepting to himself, leaves me ground to hope that he will endeavor to
be impartial."
John Randolph also wished to be excused, declaring that he had " a strong prepossession."
MR. BURR.-" Really, I am afraid we shall not be able to find any man without
this prepossession."
CHIEF-JUSTICE.-" The rule is, that a man must not only have formed, but declared an opinion, in order to exclude him from serving on the jury."
MR. RANDOLPH.-" I do not recollect to have declared one."
Mr. Burr did not object to Randolph, and he was accordingly sworn as foremanu
of the jury.-1 Burr's Trial, p. 44.




JOHN MARSHALL.                          373
pleaded not guilty, and was committed for trial.  The trial was postponed to the 3rd of August following.
On that day the Court again convened, and the same counsel appeared.  Subsequently, and about the time of opening the cause to
the jury, Mr. Charles Lee, ex-Attorney-General of the United States,
was added to the array of counsel for the defence. Two weeks were
consumed in the attempt to obtain a jury, the great mass of those who
were summoned exhibiting the strongest prepossessions against the
prisoner and his cause.* During these preliminary arrangements and
the discussions incident to them, much asperity of feeling was at times
exhibited between the counsel on either side.  It was observed, however, that the prisoner at the bar preserved, throughout, the most cool
and dignified composure, not only avoiding everything like personality
himself, but imposing restraint upon his counsel.  The veteran Luther
Martin, who defended Col. Burr with all the warmth and ardor of
friendship,t could not entirely smother those feelings of indignation
which the vigorous attacks of the prosecution excited. Being interrupted by one of the counsel for the people, who suggested to him the
importance of economizing time, he sharply replied, " I know what
* Most of them were set aside for cause. Occasionally, but not often, Burr exercised his right of peremptory challenge. The first of these peremptory challenges was of a Mr. Hamilton Morrison. After a brief examination, the Court
thought that sufficient cause had not been shown against his being a juror, and it
appears that he was about to be sworn, when the juror impudently remarked, " I
am surprised why they should be in so much terror of me. Perhaps my name
may be a terror, for my first name is Hamilton." Col. Burr quietly observed that
that remark was a sufficient cause for objecting to him," and challenged him;
whereupon Mr. Hamilton Morrison was set aside.-1 Burr's Trial, p. 383.
t Mr. Martin, in offering himself as one of Burr's bail, remarked that he was
happy to have this opportunity to give a public proof of his confidence in the
honor of Col. Burr, and of his conviction that he was innocent. Indeed, with
such warmth and ardor did he enter into the defence, that Jefferson, in one of his
letters to the District-Attorney, Mr. Hay, hints at the propriety of indicting Martin (whom he denounces as an " impudent Federal bull-dog"), as an accomplice of
Burr.
It may be added that Jefferson's denunciations of Martin were repaid with interest. I have been told by an eminent gentleman of the Maryland bar, who was
well acquainted, and had practiced with Mr. Martin, that it was one of his common expressions when stigmatizing any person with the strongest terms of opprobrium, to say that he was " as great a scoundrel as Thomas Jefferson."




374               LIVES OF THE CHIEF-JUSTICES.
economy they wish. They wish us to be silent; they would, if they
could, deprive Col. Burr's counsel of an opportunity of defending him,
that they might hang him up as soon as possible, to gratify themselves
and the government."  Mr. McRae denounced the remark as " a most
unprincipled and unfounded assertion." Mr. Hay also warmly repelled
the charge.  The Chief-Justice, in his calm and dignified way, at once
restored order. He had hoped " that no such allusions would have
been made; that the government ought to be treated with respect,
and that there was a delicacy to be observed on that subject, from
which he hoped there would be no departure hereafter." Thereupon
Col. Burr remarked: "I rose to stop the progress of such language
when up before. I had made sufficient apologies' if any were necessary, for any expressions which had been used, and I had hoped that
no allusion would be made to the subject. It will be recollected that
I have constantly manifested my displeasure at such expressions. I
have carefully avoided such myself, and imposed similar restraints on
my counsel; and urged that the government should be treated with
the utmost delicacy, though there was great provocation from the
gentlemen on the part of the prosecution, which would have justified
harsh terms.   I hope these things will cease.  On the part of my
counsel I am sure they will cease." *
* 1 Burr's Trial, p. 386. I have remarked that Burr preserved an unruffled
temper throughout the trial, and rarely suffered himself to be betrayed into anything like warmth of language. Occasionally, however, we notice something of
the kind. On his motion that the Court would instruct the jury on certain special
points of law, Mr. Hay hoped the Court " would not grant particular indulgences
to Col. Burr, who stood on the same footing with every other man charged with a
crime."
MR. BURR.-" Would to God that I did stand on the same ground with every
other man. This is the first time I have ever been permitted to enjoy the rights
of a citizen. How have I been brought hither?"
The CHIEm-JusTICE said it was improper to go into these digressions.
Col. Burr thereupon disclaimed any desire to obtain other privileges and rights
than those which belonged to every citizen.
On one occasion, too, he expressed himself with much asperity, and with a keen
and bitter sarcasm upon what he called " the amiable morality " of the government.
Alluding to the arrest of his friends, the seizure of his property and papers, and
an order which had been issued, as he says, to kill him while descending the
Mississippi, he remarks:
" All this may only prove that my case is a solitary exception from the general




JOHN MARSHALL.                           375
At length, the jury being empannelled and sworn, on Monday, the
I3 th of August, Mr. Hay opened the case on the part of the prosecution. I shall not undertake to follow the course of the trial, but refer
the reader to the printed report of it by Mr. David Robertson, published at the time in two volumes, containing the entire proceedings,
including the evidence, the arguments of counsel, and the opinions of
the Court upon the various motions made, and questions raised, during
the course of the proceedings.
The counsel for the people having adduced their testimony relative
to the overt acts alleged in the indictment, namely, the hostile assemblage on Blennerhasset Island in the Ohio river-at which it was not
pretended that Col. Burr was present, he being really at the time
hundreds of miles distant from the scene of action-now proposed to
rule. The government may be tender, mild, and humane to every one but me.
If so, to be sure, it is of little consequence to any one but myself. But surely I
must be excused if I complain a little of these proceedings. There seemed to be
something mingled in these proceedings which manifested a more than usual inclination to attain the ends of justice. As far as it related to himself perhaps
these things were of no account; but what was then to be said of those and other
measures, such as the suspension of the habeas corpus act, which concerned the
whole nation? If, in the Island of Great Britain, such a measure was calculated to
produce so much disturbance, what kind of sensation ought it to produce in this
country.;' Our President is a lawyer, and a great one. too. He certainly ought to know
what it is that constitutes a war. Six months ago he proclaimed that there was a
civil war. And yet for six months have thbvy b-,-n hunting for it, and still cannot
find one spot where it existed. There was to be sure a most terrible war in the
newspapers, but nowhere else."
These remarks were made on a motion of Mr. Hay, after the grand jury hall
been sworn, and before indictment found, to commit Burr to answer a charge of
treason-a motion which was denied by the Chief-Justice.-1 Burr's Trial, p. 78.
During all the proceedings of the trial, Col. Burr manifested the fearless and
firm demeanor of a man who feels himself the object of an unrelenting and unjust
persecution. When his accuser, Gen. Wilkinson, entered the Court, the reporter
says the countenance of Col. Burr was " marked by a haughty contempt." To
his daughter he writes in the tone of an injured and innocent man: "You have
read to very little purpose, if you have not remarked that such things happen in
all democratic governments. Was there in Greece or Rome a man of independence, and supposed to possess great talents, who was not the object of vindictive
and unrelenting persecution?"




376             LIVES OF THE CHIEF-JUSTICES.
connect him with the transaction by collateral testimony. Here
the counsel for the prisoner raised the objection, that no such evidence
could be given under the indictment. It was at once perceived that
the stress of the case lay in this objection, which Wirt, in his speech,
very properly characterized as a bold and original stroke in the noble
science of defence, marking the genius and hand of a master. The
discussion which arose upon it, resulting in a decision by the ChiefJustice, which effectually put an end to the prosecution, was opened
by Mr. Wickham. It lasted a' week; all the counsel employed on
either side having spoken at length upon the question,* and with the
opinion of the Court thereon, occupies the last sixty pages of the first,
and the whole of the second volume of the report of the trial. I desire to pass no unmeaning or exaggerated eulogy upon this splendid
display of forensic genius and eloquence; and therefore shall merely
say, that it undoubtedly presents us the fullest and most perfect exposition of the law of treason, both under the common law and statutes
of England, and as defined by the Federal Constitution, to be found
in the language.  Every variety of illustration, every ingenuity of
argument, the most ample historical dissertations upon the law of treason, the fullest analysis of cases, the application of the most hidden
and recondite principles of the common law-in short materials from
all sides and from every source, were pressed into the service of these
masterly arguments. Many parts of them are embellished with a
richness of language, and an elegance of rhetoric, which serve admirably to relieve the hard and dull outlines of a mere legal discussion. Such especially is the case with the speech of Mr. Wirt, who
may be called the Sheridan of the prosecution-a speech which exhibits in a felicitious degree that union of brilliant fancy, eloquence,
and legal acumen, which are displayed, though perhaps not in an
equal degree, in all the great forensic efforts of that accomplished lawyer. Though it may not deserve the exaggerated encomium which
Burke in a moment of ecstacy bestowed on the effort of his eloquent
associate on the trial of Hastings, it certainly may claim its full share
* The counsel spoke in the following order: Mr. Randolph followed Mr. Wickham.  ir. McRae and MAr. Wirt for the people replied. Mr. Botts followed for the
defence; Mr. Hay for the prosecution; Mr. Lee and Mr. Martin for the defence,
ald Mr. Randolph closed the argument.




JOHN MARSHALL.                     377
of the compliment extorted from the cold and calm judgment of Marshall on the bench: "A degree of eloquence seldom displayed on any
occasion, has embellished a solidity of argument, and a depth of research, by which the Court has been greatly aided in forming the
opinion it is about to deliver." *
The Chief-Justice, in his opinion upon the case, decides, that collateral
testimony offered to show Col. Burr's connexion with the transactions
on Blennerhasset's island is inadmissible. His conclusion upon this
point is sustained by a keen and subtle logic, and an almost technical
precision of argument, which, however, satisfactory and conclusive to
the legal mind, does not leave the case upon that broad and high
ground of principle, where the counsel for the defence had placed it;
nor does it at once strike the understanding as entirely consistent
with the rule, to which the Chief-Justice still adhered, as laid down in
the case of Bollman and Swartwout, namely, that if " a body of men
be actually assembled for the purpose of effecting by force a treasonable object, 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 considered as traitors." How then, it
might be asked, could the testimony offered to prove Burr's connexion, though remote from the scene of action, be rejected? By a
nice, but technical, though doubtless strictly legal distinction. The
overt act of treason laid in the indictment was the levying of war in
Blennerhassett's Island;-Burr was not present, either in person or in
contemplation of law, either actively, or constructively aiding and
assisting in the particular act there alleged to have been committed;
and whether that act amounted to an act of war or not (which the
Chief-Justice intimates he would have submitted to the jury), no proof
of any other overt act could lawfully be given in evidence under the
indictment.t
The effect of the decision was, of course, to cut off the government
counsel from giving any evidence to connect Col. Burr with the transactions on Blennerhassett's Island. The prosecution was at an end.
The next day, the jury having retired under the charge of the court,
* 2 Burr's Trial, p. 401.
t See opinion. 2 Burr's Trial, p. 401, et seq.




378              LIVES OF THE CHIEF-JUSTICES.
brought in a verdict of not guilty, and a similar fate met the indictment for misdemeanor.
Says Wirt in a letter to a friend: "Marshall has stepped in between Burr and death.    He has pronounced an opinion that our
evidence is all irrelevant. Burr not having been present at the island
with the assemblage, and the act itself not amounting to a levying of
war." *  And again, a fortnight afterwards: "The second prosecution against Burr is also at an end; Marshall again arrested the
evidence. A motion will be made to commit him and his confederates
for trial in Kentucky, or wherever else the judge shall, from the whole
evidence, believe their crimes to have been committed. There is no
knowing what will become of the motion. I believe it will be defeated." t  In this Mr. Wirt was mistaken. Burr was held to bail in
the sum of three thousand dollars to answer in Ohio, for a misdemeanor in setting on foot a military expedition against the territories
of Spain.[ This decision seems to have produced some disgust in the
mind of Burr.  In a letter to his daughter he remarks: " The opinion
was a matter of regret and surprise to the friends of the Chief-Justice,
and of ridicule to his enemies-all believing that it was a sacrifice of
principle to conciliate Jack Cade."  On the other hand the government,
or perhaps it may more correctly be said, prominent individuals in
public life, connected with the administration, did not fail to animadvert strongly upon the conduct and decision of Marshall during the
trial. It was something of this feeling perhaps which induced a distinguished senator from Virginia,~ to introduce a bill at the next
session of Congress, defining treason, which he claimed the legislative
body had a constitutional right to do. Upon this occasion he attacked
the opinions of the Chief-Justice with great warmth and boldness, remarking, among other things, " I have learned that judicial opinions on
* Wirt's letter bears date only the day after the decision was pronounced, and
he must have misunderstood that part of the opinion. The Chief-Justice did not
decide that the transaction on Blennerhassett's Island did not amount to a levying of war. He would have been disposed, he remarks, to leave it as question of
fact for the jury, but the point was not to be understood as decided.-2 Burr's
Trial, p. 422.
t Wirt to Dabney Carr. 1 Kennedy's Life of Wirt, p. 205.
$ He did not appear, and the recognizance was forfeited.
~ Mr. Giles.




JOHN MARSHALL.                       379
this subject are like changeable silks, which vary their colors as they are
held up in political sunshine." But arrows like these fell innocuous
at the feet of the Chief-Justice. The purity of his motives, the elevation of his mind, and the integrity of his character, were proof against
all such attacks. He held no opinions to propitiate the government,
none to conciliate the favor of " Jack Cade."
"Why did you not tell Judge Marshall that the people of America
demanded a conviction?" was the question put to Wirt, after the
trial.  " Tell him that 1" was the reply. "I would as soon have
gone to Herschel, and told him that the people of America insisted
that the moon had horns as a reason why he should draw her with
them."
The law of prize and Admiralty jurisdiction formed one of the most important branches of-jurisprudence administered in the Federal tribunals
during Marshall's term of service. Hitherto this department of the law
had received but little attention either in our own country or in England.
Sir William Scott, appointed to the bench in England in 1798, was
the first to raise it into respectability in that country, and by his
elaborate and luminous opinions, published in Robinson's Reports,
he prepared the way for that liberal and enlightened code of American
prize law, which the judgments and decisions of Marshall and Story
may be said to have created. In the preceding sketches of Marshall's
predecessors I have noticed nearly all the important cases of Admiralty
and prize law decided in the Supreme Court up to the time he came
upon the bench. For several years subsequent to this period, and as
late as the argument of the celebrated case of Rose vs. Himely,* in
the winter of 1808, very few contributions to this branch of law-learning had been made by the American Courts. These contributions
were all to be found in the few cases reported in Dallas, and the
earlier volumes of Cranch, together with a small volume of decisions in
the South Carolina Courts, by Judge Bee. "It is a beautiful science," says Judge Story, two or three years later; but at the same
time it was for all practical purposes a new science; for, with the exception of these American cases and the four or five volumes of Robinson's Admiralty Reports then published, very little useful reading
* 4 Cranch's Reports, 241.




380             LIVES OF THE CHIEF-JUSTICES.
was within reach of the lawyer, except one or two treatises or
essays, and a few brief notes to collections of Admiralty forms and
precedents.
The non-intercourse and embargo acts, as the biographer of Story
very correctly observes, created cases confessedly new in their character, and which were not only without precedent, but beyond the reach
of established rules. It became, therefore, necessary to build up a
new body of law, to open untrodden paths, to reduce general principles to specific form and practice, to apply settled rules to curious and
complicated facts, and to educe from conflicting elements clear, just,
and practical doctrines. Cases occurred which had never before presented themselves in a similar aspect. The conflicting rights of captors and claimants, of neutrals and belligerents, trading under licenses,
or privateering under letters of marque and reprisal, were to be
adjusted.  And the Court, whose duty it was to decide upon these
important subjects, was forced to act comparatively without a guide,
and oftentimes to create the law of the case.*
One of the most important of the earlier cases before Chief-Justice
Marshall was the case I have just alluded to, Rose vs. Iimely,
which involved the question whether the Courts of this country can
examine the authority of a foreign tribunal acting as a prize court,
and can disregard its sentence condemning a vessel as prize of war;
and if so, whether such sentence of a foreign tribunal is valid, when
the vessel at the time is actually lying in an American port. The
case received additional importance from the fact that several causes
from South Carolina, Maryland, and Pennsylvania depended on the
the decision of the same principle. The gentlemen engaged upon all
these causes were, therefore, suffered to be heard upon this argument,
and a more formidable array of counsel had certainly never appeared
at the bar of the Supreme Court.    For the appellant were Mr.
Charles Lee, Mr. Harper, Mr. S. Chase, Jun., Mr. Dallas, Mr. Rawle,
Mr. Ingersoll, and Mr. Drayton. For the respondent-Mr. Duponceau, Mr. E. Tighlman, and Mr. Martin. The argument lasted nine
days, three of which were consumed by the speech of Luther Martin
alone, as we are assured by a spectator whom Mr. Martin " fatigued
almost to death " t
* 1 Story's Life and Letters, 226, 227.
t Judge Story, who, while on his second visit to Washington, was present at this




JOHN MARSHALL.                          381
The decision of the Court was pronounced by the Chief-Justice,clear, luminous, argumentative, pointed, and brief-travelling not far
for illustration- alluding to hut few decisions, and these only the deargument. In a letter to a friend he has given brief sketches of the counsel engaged in it, which are too interesting to be omitted:
"Harper is diffuse, but methodical and clear; he argues with considerable
warmth, and seems to depend upon the deliberate suggestions of his mind. I incline to think that he studies his cause with great diligence, and is to be considered
as in some degree artificial.
" Duponceau is a Frenchman by birth, and a very ingenious counsellor at Philadelphia. He has the reputation of great subtilty and acuteness, and is excessively
minute in the display of his learning. His manner is animated bnt not impressive, and he betrays at every turn the impatience and the casuistry of his
nation. His countenance is striking, his figure rather awkward. A small, sparkling black eye, and a thin face, satisfy you that he is not without quickness of
mind; yet he seemed to me to exhaust himself in petty distinctions, and in a perpetual recurrence to doubtful, if not to inconclusive arguments. His reasoning
was rather sprightly and plausible, than logical and coercive; in short, he is a
French advocate.
" Tighlman is quite an old man, of an unpromising appearance; his face indicates rather a simplicity and weakness of character. Indeed, when I first saw
him, I could not persuade myself that he possessed any talent. I heard his argument, and it was strong, clear, pointed, and logical. Though his manner was bad,
and his pronunciation not agreeable, every person listened with attention, and
none were disappointed.
" Rawle is quite a plain, but genteel man, and looks like a studious, ingenious,
and able lawyer. He argues with a pleasant voice, and has great neatness, perspicacity, and even elegance. He keeps his object steadily in view; he distinguishes with care, enforces with strength, and if he fails to convince, he seldom
spends his thoughts vainly.
"Ingersoll has rather a peculiar face, and yet in person or manner has nothing
which interests in a high degree. He is more animated than Rawle, but has less
precision; he is learned, laborious, and minute, not eloquent, nor declamatory,
but diffuse. The Pennsylvanians consider him a perfect drag-net, that gathers
everything in its course.
"Dallas is a book man, ready, apt, and loquacious, but artificial. He is of a
strong, robust figure, but his voice seems shrill and half obstructed. He grows
warm by method, and cools in the same manner. He wearies with frequent cmphasis on subordinate points; but he cannot be considered as unscientific or
wandering.
"Lee, of Virginia, is a thin, spare, short man; you cannot believe that he was
Attorney-General of the United States. I heard him speak for a few minutes, but
the impression is so faint, that I cannot analyse it."




382               LIVES OF THE CHIEF-JUSTICES.
cisions of Sir William Scott, in the English Admiralty Court-he
arrives at his conclusions by a process of that same simple and perspicuous reasoning which characterizes all his juridical arguments. The
principles established by it are, that the jurisdiction of a foreign tribunal may be examined in the Supreme Court of this country, and if
such tribunal cannot, consistently with the law of nations, exercise the
jurisdiction which it has assumed, its sentence is to be disregarded.
That in the case at bar, the sentence of the tribunal-a French
Court sitting at St. Domingo-was invalid, the captured vessel never
having been carried within its jurisdiction, and actually lying in the
port of Charleston when the sentence of condemnation was passed.
The Chief-Justice further laid down the rule, in which he was sustained
by a majority of the Court, that though the rights of war might be
exercised by a country on the high seas, yet that the legislation of
every country being territorial, its rights of sovereignty in the execution of a mere municipal law must be exercised within its own territory; and therefore that the seizure of a vessel, not belonging to a
subject, made on the high seas, for the breach of a municipal regulation, as was the case with regard to the vessel in controversy, was an
act which the sovereign could not authorize, and such seizure was
totally invalid. To this last proposition Judges Livingston, Cushing,
and Chase, though concurring in the general decision, did not accede.
Story next comes to Luther Martin, " that compound of strange qualities," who
seems to have impressed him less favorably than either of the others. One can
scarcely believe that his description does full justice to that distinguished gentleman:
" He is about the middle size, a little bald, with a common forehead, pointed
nose, inexpressive eye, large mouth, and well-formed chin. His dress is slovenly.
You cannot believe him a great man. Nothing in his voice, his action, his language impresses. Of all men he is the most desultory, wandering, and inaccurate. Errors in grammar, and, indeed, an unexampled laxity of speech mark
him everywhere. All nature pays contribution to his argument, if, indeed, it can
be called one. You might hear him for three hours, and he would neither enlighten nor amuse you; but amid the abundance of chaff is excellent wheat; and,
if you can find it, the quality is of the first order.  *  *  *  *  *  *
Hie did not strike me at all, and if I were to judge solely from that effort, I should
say that he was greatly overrated. But every one assures me that he is profoundly learned, and that though he shines not now in the lustre of his former
dclys, yet he is at times very great."-Life and Writings of Story, Vol. I. pages
123,124.




JOHN   MARSHALL.                       383
The case of Hudson and others vs. Guestier, which was decided
the same day, differed from the case of Rose vs. Himely in one point,
namely, that the captured vessel, the Sea Flower, was seized within
the territorial jurisdiction of St. Domingo, and had been carried into
a Spanish port in the isle of Cuba. The question therefore which
arose was, whether the Court of the captor lost its jurisdiction over
the captured vessel by its being carried into a neutral port.  The
Court decided in favor of the jurisdiction of the foreign tribunal, holding the possession of the captors in a neutral port, to be the possession of the sovereign. This point was held by a majority of the
judges,* and the question was accordingly regarded as settled.
But the principle laid down by the Chief-Justice in Rose vs. Himely, that the seizure of a vessel on the high seas beyond the jurisdiction of the sovereign, for the mere breach of a municipal regulation,
was invalid, and conferred no jurisdiction, was not considered as settled. Accordingly, at the term of the Court, in 1810, the case of
Hudson vs. Guestier again came up for argument on a new state of
facts, from which it appeared that the Sea Flower had actually been
captured beyond the jurisdiction of St. Domingo, and had been carried
into the neutral port of Baracoa, in the isle of Cuba. The point,
that the French Court had jurisdiction, notwithstanding the captured
vessel lay within a neutral port, being considered as settled by the
former decision, the sole remaining question was, whether the capture
beyond the territorial jurisdiction of St. Domingo was valid. Mr.
JUSTICE LIVINGSTON delivered the opinion of the Court in favor of the
jurisdiction, overruling the doctrine of the Chief-Justice in Rose vs.
Himely, and in this opinion all the judges except the Chief-Justice
concurred.t
* Justice Livingston and one other of the judges dissenting.
t 6 Cranch, 281. The decision in Rose vs. Himely is qualified in another respect by the subsequent case of Williams and others vs. Amroyd and others, at the
term of the Court in 1813. In that case it is said to be settled by the decision of
Hudson vs. Guestier, that the sentence of a competent Court proceeding in rem.
is conclusive with respect to the thing itself. No Court of co-ordinate jurisdiction
can examine the sentence; and though a foreign tribunal should condemn American neutral property under an edict unjust in itself, contrary to the law of nations,
and in violation of neutral rights, as declared by the executive and legislative
authority of the United States, yet the Courts of this country cannot lend their




384              LIVES OF THE CHIEF-JUSTICES.
This important branch of jurisprudence, namely, Admiralty and
Prize law-which subsequently grew up into a system in the Federal
tribunals-received a new impulse at the breaking out of the war, and
after the accession of Judge Story to the national judiciary.
That eminent jurist took his seat on the bench at the term held in
February, 1812,* filling the vacancy occasioned by the death of
Judge Cushing.   Another vacancy had also recently occurred by the
death of Judge Chase, which vacancy had been filled by the appointment of Gabriel Duval, of Maryland.    In other respects no change
had been madq since the appointment of Mr. Justice Todd, in 1807
From the correspondence of Judge Story at this period, we derive
some interesting details relative to the mode of life of the judges at
these general terms of the Court, and their manner of dispatching
business. They lived together on terms of the most frank and unaffected intimacy: " Our intercourse," he writes, " is perfectly familiar
and unconstrained, and our social hours, when undisturbed with the
labors of law, are passed in gay and frank conversation, which at once
enlivens and instructs." t
The mode of arguing causes in the Supreme Court at that day was
excessively tedious and prolix. Long Chancery bills with overloaded
documents, and long common law records, with scores of bills of exceptions attached to them, crowded the docket. I have mentioned the
three days' speech of Luther Martin in the argument of a single case
which lasted nine days. Though this was not, perhaps, a common
occurrence, still it was no unusual thing for a cause to consume three
or four days in the argument.1 One lasted five days at the term
aid to the owner to recover such property, because they cannot revise, correct, or
even examine the sentence of the foreign tribunal. 7 Cranch Reports, 423.
* He was appointed toward the close of the year 1811, the office having been
first tendered to Levi Lincoln, and afterwards to John Quincy Adams, by both
of whom it was declined. At the time of Story's appointment he was but thirtytwo years of age, and the youngest judge ever raised to the bench of the Supreme
Court.
t Letter to his wife. March 5th, 1812.-Life and Letters, Vol. I. p. 217.
t The Chief-Justice was one of the most patient listeners that ever sat on the
bench. "His patience," says Mr. Binney, "was never surpassed;-patience to
hear that which he knew already, that which he disapproved, that which questioned himself. When he ceased to hear it was not because his patience was exhausted, but because it ceased to be a virtue. Whether the argument was ani



JOHN MARSHALL.                           385
when Story first took his seat, and in this case he says a printed brief
of two hundred and thirty pages was put into his hands in addition.
The two hours' rule, subsequently adopted, was not then il vogue to
cut short prolixity and arrest dullness.   The labor of these heavy
causes, however, was much relieved by the mode adopted by the
judges, of mooting questions as the argument proceeded, and discussing them step by step, in familiar conversation, at their lodgings.  In
this way, remarks Story, we often came to a very quick and very
accurate opinion in a few hours.
About this period the celebrated William     Pinkney, of Maryland,
re-appeared at the bar of the Supreme Court, and entered upon
that brilliant career, which is almost without a parallel in the history of the profession.   With the exception of two years-from
1804 to 1806-Pinkney had been entirely withdrawn from the practice of law for the period of fifteen years, during the greater part of
which time he had filled important official stations abroad. Returning to America in 1811, he was soon afterwards appointed AttorneyGeneral of the United States by President Madison, and attended the
Supreme Court for the first time at the February term, 1812.*
mated or dull, instructive or superficial, the regard of his expressive eye was an
assurance that nothing that ought to affect the cause was lost by inattention or
indifference, and the courtesy of his general manner was only so far restrained on
the bench, as was necessary for the dignity of office and the suppression of familiarity." An anecdote, related of Marshall I believe by Judge Story, pleasantly
illustrates these characteristics. A tedious advocate was drawing out a protracted
and wearisome argument, in which he discussed a thousand trivial and unimportant principles, and advanced again and again the most trite and familiar propositions. The Chief-Justice listened to the speaker with profound attention until
" patience had ceased to be a virtue," when he interrupted him in his usual placid
and affable manner, with the remark:  "Mr. -, I think this is unnecessary. There are some things which a Court, constituted as this is, may be presumed to know."
* The first case argued by Mr. Pinkney, after his appointment as AttorneyGeneral, was a Maryland case-Le Roy vs. The Maryland Insurance Company,
A crowded audience had assembled to hear him, and Pinkney, who had been
keeping the public some time in suspense as to his debut, exerted himself to the
utmost, and with distinguished success. Messrs. Winder and Harper were for the
plaintiffs, and Luther Martin, then Attorney-General of Maryland, was associated
with Pinkney for the defendants. This, as I have remarked, was the first term
of Judge Story on the bench of the Supreme Court. In a letter to a friend, Story
25




386              LIVES OF TIIE CHIIEF-JUSTICES.
Pinkney was admirably fitted for this appointment at a time when
questions of prize law were constantly arising in the Federal Courts.
Daring the six or seven years in which he had officiated in England
as one of the commissioners under Jay's treaty, he had acquired an
extensive and thorough knowledge of the principles applicable to
these subjects, having been almost constantly engaged in the investigation of cases turning upon the law and practice of prize courts, the
rights of belligerents and neutrals, the law of contraband, blockade, &c.
One of the earliest causes in which Pinckney was engaged was that
of the Exchage,* in which the Chief-Justice was called upon to consider and determine some very delicate, as well as intricate questions
of international law  connected with Admiralty jurisdiction.  The
Exchange, an American merchant ship, had been captured by a
French vessel under Napoleon's decree of Rambouillet.  Having been
commissioned in the French service, and sailing as a French vessel, she
had put into the port of Philadelphia, in distress, where she had been
proceeded against by the American owners. The French minister
thereupon interposed the claim (which was sustained by the AttorneyGeneral, Mr. Pinkney, and Mr. Dallas, the District-Attorney of
Pennsylvania), that, being a French national vessel, she was not
amenable to judicial process; and that the original seizure was a
question of state to be settled by negotiation, and was not a question
to be settled in an American Court of Admiralty.  These positions,
which we are told by the biographer of Pinkney, he sustained with a
force of argument, an eloquence, and an extent of learning which
raised him in the public estimation to the head of the American bar,
were subsequently made the judgment of the Court.    The question
alludes to the argument of this case, and gives his earliest impr.:!on of Pinkney. Winder, he says, was smart and striking; Harper adroit and able; Martin
heavy, unmethodical, and inaccurate; but Pinkney was, to the mind of the
young Judge, the Ajax of the argument. " His speech,;" says Story, after briefly
alluding to his defective voice, and vehement manner," was admirable, his language
fluent and select, elegant, glowing, fiery-the ardentia verba of oratory-and his
logic was conceived with a cogency that bore itself in one continued stream of
reasoning:' Wave followed wave, nor spent its force in vain.'7
* 7 Cranch Rep. 116 to 147.




JOHN MARSHALL.                        387
was a novel one, so far as the Courts of this country were concerned;
and, indeed, very little light had been thrown upon it by any adjudged
case in England. The Chief-Justice remarks in his opinion that in
exploring an unbeaten path, with few, if any, aids from precedents or
written law, the Court had found it necessary to rely much on general
principles, and on a train of reasoning founded on cases in some degree
analogous to this. Following this course of reasoning, and applying
these principles, he arrives at a conclusion which is based doubtless
upon the highest and most liberal principles of comity and international law-namely, that notwithstanding the vessel might have
been the property of the libellants, yet her capture and commission in
the service of the French Emperor stamped her with the character of
foreign nationality, and having necessarily entered within an American port, and demeaning herself in a friendly manner, she was entitled
to be treated in the same manner as any other public armed vessel of
the French Emperor, with whom we were at peace, and was exempt
from the jurisdiction of the country.
I shall notice but one other of these Admiralty cases argued before,
and decided by, the Chief-Justice-namely, the celebrated case of the
Nereide. This case came before the Court at the memorable session
of 1815-a session which called out a more brilliant and imposing display of forensic eloquence and argument, than had ever before or
perhaps has ever since, at any one time, been witnessed in the Supreme
Court.  As a proof of this it is but necessary to mention the names
of some of the eminent and able counsel engaged in various causes
during the session, such as Pinkaey, Dexter, Harper, Jones, Stockton, Emmett, Hoffman, Ogden, Wells, Webster, and Clay.   Some of
these now appeared for the first time in that august tribunal, among
whom was the celebrated Irish exile, Thomas Addis Emmett, of New
York.*   Mr. Emmett was employed in some important prize causes.
* Mr. Emmett appeared frequently at the bar of the Supreme Court after this
period, and in almost every variety of causes. Judge Story, who always expressed the highest respect for his talents and character, speaks of him as follows:
"His mind possessed a good deal of the fervor which characterizes his countryien. It was quick, vigorous, searching, and buoyant. Iie kindll d as he spoke.
There was a spontaneous combustion, as it were, not sparkling, but clear and
glowing. His rhetoric was never florid; and his diction, though select and pure,
seemed the common dress of his thoughts, as they arose, rather than any studied




3S8              LIVES OF THE CHIEF-JUSTICES.
In two of these-the case of the Mlary, and that of the 1Nercide-he
was opposed by Pinkney.   He made his debut in the first of these
cases, in presence of a large and brilliant audience.  Embarrassed by
the novelty of the scene, and his want of familiarity with the subject,
he did not do himself full justice in his argument, and appeared conscious, says Judge Story, who was then on the bench, that he was not
making one of his happiest efforts. Pinkney, on the other hand, was
thoroughly familiar with the whole range of the discussion, and, excited by the emulation of meeting a new adversary, made one of his
most imposing and magnificent speeches.  He, of course, won an easy
victory, and pressed his advantage with infinite dexterity, but with a
harshness of language, and an overbearing manner, which were calculated to wound the sensitive feelings of his opponent.
Soon after, the case of the Nereide was called; a brief statement
of the facts of which will be necessary in order to enable the reader
to understand the positions taken by counsel, as well as the judgment
of the Court. Manuel Pinto, a merchant of Buenos Ayres, had chartered the Nereide, a British armed vessel, mounting sixteen guns, to
transport a cargo belonging in part to himself and others of iis countrymen, from London to Buenos Ayres.    The Nereide had been captured, near Madeira, after an action of about fifteen minutes, by the
American privateer, the Governor Tornpkins.  Having been brought
into the port of New York, the vessel and cargo were libelled, and
both condemned as lawful prize. From this decree Mr. Pinto appealed,
under the claim that a neutral might lawfully employ an armed belligerent vessel to transport his goods, and that if such vessel be captured, the neutral property on board is not, by the law of nations,
lawful prize, but must be restored to the owner.  Mr. Emmett, as
effort at ornament. Without being deficient in imagination, he seldom drew upon
it for resources to aid the effect of his arguments, or to illustrate his thoughts.
His object seemed to be, not to excite wonder or surprise, to captivate by bright
pictures, and varied images, and graceful groups, and startling apparitions, but
by earnest and close reasoning to convince the judgment, or to overwhelm the
heart by awakening its most profound emotions.  *  *  *  *  * 
His command over the passions of others was an instantaneous and sympathetic
action. The tones of his voice, when he touched on topics calling for deep feeling, were themselves instinct with meaning. They were utterances of the soul as
well as of the lips.'




JOIN MARSHALL.                      389
counsel for Pinto, sustained these positions. He was opposed by Mr.
Pilkney. The former was assisted in the argument by Mr. Hoffman, of New York, the latter by Mr. Dallas, of Philadelphia. The
question debated, it will be seen, was one of the most important and
interesting that could possibly arise in the whole range of that branch
of jurisprudence, and the entire discussion was one of surpassing brilliancy and power. Emmett had recovered from his embarrassment,
and made one of his happiest and ablest efforts. It was in the exordium to this speech that, after adverting in terms of generous praise
to the fame and ability of his opponent, of whose harsh expressions in
the previous case of the MlIar'y, he had so much reason to complain,
Emmett made a touching allusion to himself, and the misfortunes and
sorrows of his own life: " My ambition," he said, " was extinguished
in my youth; and I am admonished by the premature advances of
age not now to attempt the dangerous path of fame."  The pathos of
the illustrious exile melted the hearts of the audience, and many of
them, we are told, were dissolved in tears.*
The atonement of Pinkney in reply was ample as well as appropriate and delicate. Alluding to the opposing counsel, and turning to
Mr. Emmett, he remarked: "To one of them, indeed, I have heretofore given unintentional pain by observations to which the influence of
accidental excitement imparted the appearance of unkind criticism.
The manner in which he replied to those observations reproached me
by its forbearance and urbanity, and could not fail to hasten the repentance which reflection alone would have produced, and which I am
glad to have so public an occasion of avowing. I offer him a gratuitous and cheerful atonement-cheerful, because it puts me to rights
with myself, and because it is tendered, not to ignorance and presumption, but to the highest worth in intellect and morals, enhanced
by such eloquence as few may hope to equal-to an interesting stranger whom adversity has tried, and affliction struck severely to the
heart-to an exile whom any country might be proud to receive, and
every man of a generous temper would be ashamed to offend. I feel
relieved by this atonement, and proceed with more alacrity."
The argument of Mr. Pinkney in this great case is admitted to
* Letter of Judge Story to Mr. Sampson.-Story's Mliscellanies, 806.




390               LIVES OF THE CHIEF-JUSTICES.
have been one of the most able and brilliant which he ever delivered.*
It is preserved in Mr. Wheaton's collection of his writings and speeches,
and, indeed, is almost the only one of his legal arguments which remains in anything like a tolerable state of preservation.    It is certainly a fact, that forensic triumphs are, of all popular triumphs, the
most ephemeral.    Eloquence of speech, more potent and vivid than
the eloquence of written language, is less enduring.  It is the flash of
the lightning, not the steady effulgence of the noonday sun;-the
meteor which dazzles for a moment, not the serene and constant light
* The following extract from this speech may be given, as an example, not of
Mr. Pinkney's logic, but of that richness of diction, and gorgeousness of illustration with which he was fond of embellishing his argument. lie was criticising the
proposition maintained by the counsel for the claimant, that an armed vessel of
the enemy might be neutral in respect to her cargo, or, in other words, that a
condition of neutrality and war might exist under the same flag. Following up
the incongruity of this idea, Mr. Pinkney drew the following bold and striking
figure of the JVXcreide.
" I entreat your honors to endeavor a personification of this motley notion,
and to forgive me for presuming to intimate, that, if after you have achieved it,
you pronounce the notion to be correct, you will have gone a great way to prepare us, by the authority of your opinion, to receive as credible history, the worst
parts of the mythology of the Pagan world. The Centaur and the Proteus of
antiquity will be fabulous no longer. The prosopopceia to which I invite you is
scarcely, indeed, within the power of fancy, even in her most riotous and capricious mood, when she is best able and most disposed to force incompatibilities into
fleeting and shadowy combination; but if you can accomplish it, it will give you
something like the kid and the lion, the lamb and the tiger, portentously incorporated, with ferocity and meekness co-existent in the result, and equal as motives
of action. It will give you a modern Amazon, more strangely constituted than
those with whom ancient fable peopled the borders of the Thermodon-her voice
compounded of the tremendous shout of the Minerva of Homer, and the gentle
accents of a shepherdess of Arcadia-with all the faculties and inclination of turbulent and masculine War, and all the retiring modesty of virgin Peace. We shall
have in one personage the pharctrata camilla of the 2Eneid, and the Peneian maid
of the Metamorphosis. We shall have Neutrality, soft and gentle, and defenceless
in herself, yet clad in the panoply of her warlike neighbors-with the frown of
defiance upon her brow, and the smile of conciliation upon her lip-with the spena
of Achilles in one hand, and a lying protestation of innocence and helplessness
enfolded in the other. Nay, if I may be allowed so bold a figure in a more legal
discussion, we shall have the branch of olive entwined around the bolt of Jove,
and Neutrality in the act of hurling the latter under the deceitful cover of the
former."




JOHN MARSHALL.                      391
of the same star upon which our fathers have gazed, and which our
children shall look upon after us. Many of the brightest ornaments
of the legal profession thus live by tradition alone; and the light of
that tradition is every d4iy growing more dim as we are gradually
withdrawing farther from the generation which witnessed the display
of their genius. Even Pinkney himself was no exception to the rule.
"After all," exclaims Wirt, in one of his letters, alluding to Pinkney's
death, " how long will he be remembered?  He has left no monument of his genius behind him, and posterity will, therefore, know
nothing of such a man but by the report of others. What should we
have known of Hortensius but for Cicero?"
But to return from  this digression. Neither the logic nor the
eloquence of the counsel for the captors could avail to carry with it
the judgment of the Court. The Chief-Justice pronounced the decision, which, though against Pinkney, was coupled with a compliment
such as it has rarely fallen to the lot of any advocate to receive:" With a pencil dipped in the most vivid colors," he says, " and guided
by the hand of a master, a splendid portrait has been drawn, exhibiting the vessel and her freighter, as forming a single figure, composed of
the most discordant materials of Peace and War. So exquisite was the
skill of the artist, so dazzling the garb in which the figure was presented, that it required the exercise of that cold investigating faculty
which ought always to belong to those who sit on this bench to discover its only imperfection-its want of resemblance."
The decision of the Chief-Justice in this case has been regarded,
and perhaps justly, as one of the least satisfactory ever pronounced by
himn in this branch of jurisprudence. Starting with the doctrine,
which he considers an admitted principle of the law of nations, that a
neutral may lawfully place his goods on board an unarmed ship of a
belligerent nation, without losing their neutral character, he arrives
at the conclusion that the principle is equally sound in its applic'tlon
to an armed belligerent vessel, even though forcible resistance be
made by such vessel, and the neutral be on board at the time, provided he does not aid in such resistance. This was carrying the
etiquette of international law to its extreme limits; and, whatever
reason of dissatisfaction the American captors may have had, certainly
foreign nations could have no cause of complaint. The prevailing




392             LIVES OF TIlE CHIEF-JUSTICES.
view of the Court was the more remarkable, inasmuch as it was admitted that it did not rest on any express authority. No similar case
could be found; and only a few scanty materials, made up of inferences from cases depending on other principles, had been gleaned from
the books and employed by both parties in the argument.
The conclusions of the Chief-Justice, which were adopted by the
majority of the Court, were not concurred in by two of the Judges.
One of these, Mr. Justice Story, wrote a very able, and, so far as the
argument is concerned, it has been thought, a very conclusive, dissenting opinion. In a letter to a friend, written about the same time, he
remarks that he never in his whole life was more thoroughly satisfied
that the judgment of the Court was wrong. It may be added that in
a similar case, soon after brought to argument in the English high
Court of Admiralty,* that court laid down a rule precisely the reverse bf the principle established in the Supreme Court of the United
States in the case of the Nereide, holding, that though neutral property on board a merchant vessel of a belligerent was protected, yet,
if placed upon an armed belligerent ship, it would be liable, ol just
and sound principles, to condemnation along with the captured vessel.
The United States Supreme Court, however, adhered to its decision,
and though the same point was subsequently raised and argued in
another case,t the Court refused to reverse the doctrine established in
the case of the Nereide, observing that the rule was correct in principle, and the most liberal and honorable to the jurisprudence of this
country.
Passing by a variety of interesting and important decisions connected with almost every branch of jurisprudence, made by the ChiefJustice during the last fifteen years of his life, I propose to close
this imperfect retrospect of his judicial labors by a brief notice of a
few of those more prominent cases involving great questions of constitutional law which passed under his review, and in so doing shall
follow the chronological order of these decisions as far as a connected view of the subject will admit.
The opinions of Marshall, it is well known, though not extreme,
were nevertheless strongly federal and conservative. The tendency of
* Case of the Fanny. 1 Dodson, Admiralty Rep. 443.
t Case of the Jdtalanta. 3 Wheaton's Rep. 409.




JOHN MARSHALL.                       393
his decisions hitherto had been, and steadily continued to be, to sustain the powers of the Federal government, and to vindicate the
authority of the Federal judiciary, both over the State tribunals and
State legislation. Hence, in the decision of those important cases involving the subject of constitutional restriction on the powers of the
separate States, some of which I am now about to notice, he is almost
always found sustaining the most liberal constructions in favor of the
authority of the Federal government; and, narrowing down, so to
speak, within strict limits, the powers of the States. Without undertaking to defend or advocate, upon original principles, the correctness
of some of these decisions, particularly one which will presently be
noticed,* it is sufficient to say that most of them have been since
acquiesced in, and may now be regarded, so far as judicial authority
can establish constitutional constructions, as the settled law of our
highest tribunal.
I have noticed on a preceding page the case of The United States vs
Peters,t in which he held that a State legislature could not annul the
judgments, or determine the jurisdiction of the Courts of the United
States; and also the case of Fletcher vs. Peck,t deciding that a party
could not, consistently with the Constitution, annul his own grant,
even if such party were a sovereign State. The case of Terret vs.
Taylor,~ which was argued at the same term with the cNreide, followed, wherein Mr. Justice Story delivered the opinion of the Court,
holding that a State legislature could not repeal statutes creating
private corporations, or confirming to them property already acquired
under the faith of previous laws.
The authority of the Supreme Court to annul State laws as
being repugnant to the Constitution, and the powers of the Federal
government, was again vigorously applied by the Chief-Justice and his
associates, at the memorable session of 1819, in three noted cascs,ll
whose vital importance, and intimate connection with the constitutional jurisprudence of the country, render a brief notice of each of
them proper and necessary in this place.
* McCulloch vs. State of Maryland.
t A.nte, page 358.: Ante, p. 359.                      ~ 9 Cranch'sReports, 43.
II The Dartmouth College case, the case of Sturges vs. Crownneshield, and that
of McCulloch vs. Maryland.




394              LIVES OF THE CHIEF-JUSTICES.
The first of these cases to which I shall allude, is the celebrated
Dartmouth College case, reported under the title of The Trustees of
Dartmouth College vs. Woodward;* and I notice it first, because,
though not the earliest in point of time, of the three great cases decided at the session of 1819, it is closely connected in principle with,
and most naturally follows, the cases of Fletcher vs. Peck, and Terret
vs. Taylor, above referred to, and indeed is, in another form, but a
branch of the same discussion, namely, the constitutional inhibition
upon the States to pass any law impairing the obligation of contracts.
This celebrated case is too well known to need a detailed statement
of the facts out of which it arose.  Acts of the legislature of New
Hampshire, passed in 1816, had invaded the charter of the College,
granted by the British Crown before the revolution.   A suit was instituted in the State Courts of New Hampshire to test the validity of
these acts, and the decision of the highest Court of the State was
in favor of their validity and against the College.  From this decision
the Trustees of the College appealed to the Supreme Court of the
IUnited States.  The argument of the case was fully commensurate
with its great importance, and the unusual interest it had excited.
Webster and IIopkinson appeared for the College, and the newlyappointed Attorney-General William Wirt, and Mr. Holmes, on the
other side.  Of the depth and power, and brilliancy of the arguments,
particularly those of Webster and Wirt, it is unnecessary to speak.
That of the former, even as it is found in the dry and hard outlines of
the reporter's notes, exhibits in its full maturity the greatness and
majestic strength of one of those rare intellects that appear at long
intervals in the world.t  The speech of Wirt, though not fully report* 4 Wheaton's Reports, 518.
t Mr. Choate, in his late eloquent eulogy upon Mr. Webster, has supplied the
peroration to this argument, together with some interesting reminiscences attending it, from the relation of an eye-witness, Professor Chauncey A. Goodrich,
of Yale College. The interest of the narrative, not less than its beauty of expression, furnishes an apology for introducing it in this place:
" The Supreme Court of the United States held its session that winter in a
mean apartment, of moderate size-the Capitol not having been built after its destruction in 1814. The audience, when the case came on, was thciefore- small,
consisting chiefly of legal men, the elite of the profession throughout the country.
Mr. Webster entered on his argument in the calm tone of easy and dignified conversation. His matter was so completely at his command that he scarcely looked




JOHN MARSHALL.                            395
ed, was also of great power and beauty. Indeed, it must have been
one of his greatest and most brilliant efforts to have justified the encomiums which his adversary passed upon it.        Says Webster in a
at his brief, but went on for more than four hours with a statement so luminous
and a chain of reasoning so easy to be understood, and yet approaching so nearly
to absolute demonstration, that he seemed to carry with him every man of hie
audience without the slightest effort or weariness on either side. It was hardly
eloquence, in the strict sense of the term-it was pure reason. Now and then, for
a sentence or two, his eye flashed and his voice swelled into a bolder note as he
uttered some emphatic thought, but he instantly fell back into the tone of earnest
conversation which ran throughout the great body of his speech. A single circumstance will show you the clearness and absorbing power of his argument.
"I observed that Judge Story, at the opening of the case, had prepared himself,
pen in hand, as if to take copious minutes. Iour after hour, I saw him fixed in
the same attitude, but so far as I could perceive, with not a note on his paper.
The argument closed, and I could not discover that he had taken a single note.
Others around me remarked the same thing, and it was among the on dits of
Washington, that a friend spoke to him of the fact with surprise, when the Judge
remarked:-' Everything was so clear, and so easy to remember, that not a note seemed
necessary, and in fact, 1 thought little or nothing about my notes.'
" The argument ended, Mr. Webster stood for some moments silent before the
court, while every eye was fixed intently upon him. At length, addressing the
Chief-Justice, Marshall, he proceeded thus:"' This, sir, is my case! It is the case not merely of that humble institutionit is the case of every college in our land. It is more. It is the case of every
eleemosynary institution throughout our country-of all those great charities
founded by the piety of our ancestry to alleviate human misery, and scatter blessings along the pathway of life. It is more! It is in some sense the case of every
man among us, who has property of which he may be stripped, for the question is
simply this:'Shall our State Legislatures be allowed to take that which is not
their own, to turn it from its original use and apply it to such ends or purposes
as they, in their discretions, shall see fit?9 Sir, you may destroy this little institution: it is weak: it is in your hands! I know it is one of the lesser lights in
the literary horizon of our country. You may put it out. But if you do so, you
must carry through your work. You must extinguish, one after another, all
those great lights of science which for more than a century have thrown their
radiance over our land! It is, sir, as I have said, a small college. And yet there
are those who love it. [Here the feelings which he had thus far succeeded in
keeping down, broke forth: his lips quiveredl; his firm cheeks trembled with
emotion; his eyes were filled with tears; his voice choked, and he seemed struggling to the utmost simply to gain that mastery over himself which might save




396               LIVES OF THE CHIEF-JUSTICES.
letter to him from Boston, soon after: " It is the universal opinion in
this quarter, among all who have inquired or heard about the cause,
that that argument was a full, able, and most eloquent exposition of
the rights of the defendant.  I will add that, in my opinion, no future
discussion of the questions involved in the cause, either at the bar or
on the bench, will bring forth on the part of the defendant any important idea which was not argued, expanded, and pres&sd in the
argument alluded to."
There are those who are still of the opinion that Wirt, if indeed he
him from an unmanly burst of feeling. I will not attempt to give you the few
broken words of tenderness in which he went on to speak of his attachment to the
college; the whole seemed to be mingled throughout with the recollections of
father, mother, brother, and all the trials and privations through which he had
made his way into life. Every one saw that it was wholly unpremeditated, a
pressure on his heart, which sought relief in words and tears.]
"The court-room during these two or three minutes, presented an extraordinary
spectacle. Chief-Justice Marshall, with his tall and gaunt figure bent over as if
to catch the slightest whisper, the deep furrows of his cheek expanded with emotion, and eyes suffused with tears; Mr. Justice Washington at his side, with his
small and emaciated frame, and a countenance more like marble than I ever saw
on any other human being, leaning forward with an eager, troubled look; and
the remainder of the court, at the two extremities, pressing, as it were, towards a
single point, while the audience below were wrapping themselves round in closer
folds beneath the bench to catch each look, and every movement of the speaker's
face. If a painter could give us the scene on canvass-those forms and countenances, and Daniel Webster as he then stood in the midst-it would be
one of the most touching pictures in the history of eloquence. One thing it
taught me, that the pathetic depends not merely on the words uttered, but still
more on the estimate we put upon him who utters them. There was not one
among the strong-minded men of that assembly who would think it unmanly to
weep when he saw standing before him the man who had made such an argument, melted into the tenderness of a child. Mr. Webster had now recovered his
composure, and, fixing his keen eye on the Chief-Justice, said, in that deep tone
with which he sometimes thrilled the heart of an audience,
"'Sir, I know not how others may feel,' (glancing at the opponents of the College before him,)'but for myself, when I see my alma mater surrounded like
Caesar in the Senate House, by those who are reiterating stab upon stab, I would
not for this right hand have her turn to me and say,' et ti quoque mifili!"'
"And thou, too, my son! He sat down. There was a death-like stillness
throughout the room for some moments; every one seemed to be slowly recovering himself, and coming gradually back to his ordinary range of thought and
feeling."




JOHN MARSHALL.                        397
had not the better of the argument, was at least on the true side of
the question, and that it was going far-indeed to the extreme limit
of construction-for the Supreme Court to say, that, by the Constitution of the United States, the legislature of a sovereign State could
not alter the charter of a literary corporation resting upon a grant
from the British Crown.   Such, however, was the decision of the
Supreme Court as pronounced by the Chief-Justice, and amplified by
the written opinions of Justices Story and Washington, Mr. Justice
Duval alone dissenting. The Chief-Justice lays down, broadly and
clearly, the propositions, that the charter of the College was a contract
within the meaning of the Constitution, to which the donors, the
trustees of the corporation, and the Crown were the original parties,
and that it was madeon a valuable consideration, for the security and
disposition of property; that the College was a private eleemosynary
institution, and that the funds with which it was endowed were bestowed by individuals on the strength of its charter; that contracts
of this kind, creating these charitable institutions, are within the purview and protection of the Constitution; that this contract remained
unchanged by the revolution, and the duties as well as the powers
of the government devolved on the people of New Hampshire; but
that the act of the State, complained of, transferred the power of
governing the College from the mode expressed in its charter, to the
governor of New Hampshire, thus substituting the will of the State
for the will of the donors. This, he held, was a subversion of that
contract, on the faith of which the donors had invested their property,
and the act, therefore, as repugnant to the Constitution of the United
States, was null and void.
It is impossible to read this admirably reasoned and luminous opinion of the Chief-Justice without being impressed with the irresistible
power of that direct and simple, but acute and subtle juridical logic of
which he was so consummately the master.*      It is comparatively
* Judge Story notices a favorite modl of reasoning of the Chief-Justice, indicated by his frequent use of the term —" it is admitted." Said Daniel Webster,
" when Chief-Justice Marshall says,'it is admitted, sir,' I am prepared for a bomb
that will demolish all my points." Judge Story also remarks that it was a common expression of those who were accustomed to argue before him, " Once
grant his premises, and you are forced to admit his conclusions. Therefore deny
everything he says."




398             LIVES OF THE CHIEF-JUSTICES.
brief for a case of such magnitude; but at the same time it is full and
comprehensive.  He relies upon no authority, and indeed cites no
cases. All is an effort of pure ratiocination-of logical deduction.
In this respect it contrasts strongly with the more elaborate and
striking opinion of Judge Story in the same case-full of illustration,
abounding in analogies, overflowing with citations of authorities and
adjudged cases. Indeed, so full, and ample, and rich is Story's argument in the abundance of its legal lore, as to throw somewhat into the
shade the simple and unadorned, but firm and compact, logic of the
Chief-Justice. The two opinions, as has been well remarked, certainly
evince the different structure of the two minds of these eminent
jurists.*
The next decision at this term which I shall notice was made in
the case of Sturges vs. Crowninshield,t which established a most important principle relative to the limitation of State sovereignty under
the same clause of the Constitution involved in the discussion of the
Dartmouth College case, namely, the clause Which prohibits a State
Legislature from passing any law "impairing the obligation of contracts."
The defendant had been sued in the Circuit Court, on two promissory notes dated in ){arch 1811, and he pleaded his discharge under
the Insolvent Act of New York, passed in April 1811. The plaintiff
claimed that the act of New York, being retrospective, and assuming,
as in this case, to discharge pre-existing debts, was unconstitutional
and void. This position was sustained, all the judges appearing to
have unanimously concurred in the admirably reasoned and conclusive
opinion pronounced by the Chief-Justice-an opinion which deserves
to be carefully read by the student of our Constitutional historyestablishing the proposition, that a State law assuming to discharge
the debtor from his contract to pay an existing debt, by a given time,
without performance, and to release him, without payment, entirely
from any future obligation to pay, impaired, because it entirely dis* The comparison is made by the son and biographer of Judge Story. Its charaoteristic truth, I apprehend, will be at once recognized.' The argument of the
Chief-Justice," he says, "is close, logical, and compact, but somewhat hard and
dry. The argument of my father is equally convincing, but far more flowing and
learned."
t 4 Whcatou's Reports, 122.




JOHN   MARSHALL.                      399
charged, the obligation of that contract, and was therefore repugnant to the Constitution of the United States, and void. In another
case,* decided at the same time, the Chief-Justice declared as a part
of the opinion of the Court, that the circumstance of the State law
under which the debt was attempted to be discharged, having been
passed biefore the debt was contracted, made no difference in tlhe application of the principle. This proposition, however, was subsequently reviewed, in tle case which I shall now notice, and after a
full discussion and careful ex'amination, overruled by a majority of the
court, the Clief-Justice still adhering to lis opinion.
The decision in Sturges vs. Crowninshield, as an eminent lawyer has
remarked in a recent case involving a branch of the same discussion,t
took the States and the profession by surprise.  It was a matter of
astonishment that up to that time the States had all been wrong.
But this surprise was lessened when the case came to be discussed
afterwards by the bench as well as the bar in Ogden vs. Saunders.
This important case, which is considered as having settled the question relative to the constitutionality and extent of State insolvent
laws, was brought to argument at the term    of the Court held in
February, 1824.    Mr. Clay and AMr. Webster were the leading
counsel on either side, the former supported by Mr. ). B. Ogden and
Mr. IHaines-and the latter, who maintained the unconstitutionality
of the State law, by Mir. Wheaton.   The case was afterwards reargued in connexion with other causes depending on the same question, and the decision of the court pronounced in the winter of 1821.t
In this latter argument the same gentlemen who advocated the unconstitutionality of the State laws again appeared, and the parties
claiming the benefit of these laws were sustained by the eminent
* McMillan vs. McNeil, 4 Wheaton's Reports, 209.
t Mr. Reverdy Johnson, in the argument of Cook vs. Moffat, 5 Howard, 295.
In that case the court reaffirmed the p-revailing doctrine in Ogden vs. Saunders,
holding that a New Ycrk contract could not be affected ly the discharge of the
debtor under the insolvent laws of Maryland. Mnr. R CnIIEF-JSTICE TANEY intimates that he does not regard this part of the decision as in harmony with some
of the principles previously adopted by the court, and if the question had not
been considered as res adjudicata, he would have been in favor of establishing a
different rule. See subsequent sletch of Chief-Justice Taney.
t 12 Wheaton's Reports, 213.




400              LIVES OF THE CIIIEF-JUSTICES.
talents and great ability of the Attorney-General Wirt, and Edward
Livingston, General Jones, Mr. Sampson, and Mr. D. B. Ogden.
The case differed from  that of Sturges vs. Crowninshield in two
important particulars, namely, 1st, that in the former case the law
acted on a contract which was made before its passage, and in the
latter case the contract was entered into after the passage of the
law; and, 2d, that the debt claimed to be discharged under the State
law was due to a citizen of another State. The first question involved
the consideration of the constitutionality of a State bankrupt law
applied to contracts made after its passage; the second the very grave
question lwether the discharge, under such law, of a contract made
with a citizen of another State, and where the certificate was actually
pleaded in the courts of another State, was a valid discharge of the
debt.
It may be here remarked, that this is the only great constitutional
question in which the majority of the court are known to have differed
from the Chief-Justice.  Upon the question of the constitutionality of
the insolvent act of New    York four of the judges-Mr. Justice
Washington, Mr. Justice Johnson, Mr. Justice Trimble, and Mr.
Justice Thompson-delivered separate opinions in favor of the validity
of the law, and the Chief-Justice-with whom Justices Story and
Duval concurred-delivered a dissenting opinion.    Upon the second
question, Mr. Justice Johnson united with the minority, holding that
though a State might constitutionally pass a bankrupt insolvent act to
operate upon future contracts and the rights of its own citizens, yet,
that a discharge under such act was not a discharge of a debt due a
citizen of another State. To the latter part of this proposition
Justices Washington, Trimble, and Thompson dissented.*
* The published opinion of Judge Johnson has been since regarded as settling the
law in respect to this question. In the case of Boyle vs. Zacharie and Turner, at the
January term, 1832, Mr. Wirt inquired if the opinion of Mr. Justice Johnson had
been adopted by the other judges, when Chief-Justice MTarshall said, " The judges
of this court, who were in a minority of the court upon tie general question as to
the constitutionality of State insolvent laws, concur in the opinion of Mr. Justice
Johnson in the case of Ogden vs. Saunders. That opinion is, therefore, to be
deemed the opinion of the other judges who assented to that judgment. Whatever principles are established in that opinion, are to be considered no longer
open for controversy, but the settled law of the court."-6 Peters' Reports, 348.




JOHN MARSHALL                       401
The dissenting opinion of the Chief-Justice on this question of the
constitutionality of State insolvent laws, is distinguished by his usual
clearness, directness, and logical vigor. Like his previous opinions in
the Dartmouth College case, and in Sturges vs. Crowninshield, and,
indeed, it may be said like all his opinions on constitutional law, it is
purely an effort of ratiocination-a piece of simple, logical reasoning
and deduction-unsustained by precedent and authority, unaided by
analogies, almost severe and hard in its rigid rejection of illustration
and ornament. The reasons of Marshall were the suggestive inferences of his own mind; his manner of expression was the natural
result of the mode he adopted in the investigation of the subject before
him. He was in the constant habit of interpreting the Constitution
by itself, of reading it by the steady torch of his own reason, of bring.
ing to bear upon it the illumination of his own clear and strong intellect, of studying it, not in isolated portions and detached sentences,
but as a whole. The principles of construction which he applied to it,
are admirably summed up by him in the very case under consideration
in the following words:- "To say that the intention of the instrument must prevail; that this intention must be collected from its
words; that its words are to be understood in that sense in which they
are generally used by those for whom the instrument was intended;
that its provisions are neither to be restricted into insignificance, nor
extended to objects not comprehended in them, nor contemplated by
its framers; is to repeat what has been already said more at large,
and is all that can be necessary."
Applying these rules of construction, the Chief-Justice arrives at
the conclusion that the constitutional inhibition upon the States from
passing laws "impairing the obligation of contracts," extends to all
contracts prospective as well as retrospective.  Had retrospective
legislation only been intended, the very word would have been used to
convey the idea. Words which directly and plainly express the cardinal intent always present themselves to those who are preparing an
important instrument, and will always be used by them. The general
The same doctrine, as I have observed in a previous note, was recognized in the 
late case of Cook vs. Moffat, as a principle too well settled to be shaken, the present
Chief-Justice, however, intimating his concurrence, if the question had been still
open, in the views expressed by Justices Washington, Thompson, and Trimble.
26




402             LIVES OF THE CHIEF-JUSTICES.
language used is such as to suggest a general intent to prohibit State
legislation on the entire subject-the obligation of contracts-not
merely from passing retrospective laws. It must be admitted that it
is much easier to deny these conclusions, than to answer or refute the
course of reasoning by which they are sustained. All we can say,
therefore, in regard to them is that they are not the law of the United
States, because the majority of the Court did not acquiesce in their
correctness.
The last of the three great cases discussed and decided at the session of the Court in 1819, was the well known case of McCulloch vs.
the State of Maryland,* a case which may be regarded in many
respects as the most important ever discussed in the tribunals of the
country, involving, as it did, a vital question, and one of the most
delicate questions too that can possibly arise, relative to the conflicting powers of the general and State governments, and the supremacy
of their respective laws. It was in reality a controversy between the
United States and the State of Maryland; and I might here pause
a moment, to pay a tribute of admiration to the foresight and
wisdom of those statesmen who framed that august tribunal-that
"' more than Amphictyonic Council," as it was justly styled in the warm
and glowing language of one of the most eloquent advocates of the
day-the Supreme Court of the United States; —a tribunal vested
with authority to sit in judgment not only upon the rival pretensions
and claims of sovereign States as among themselves, but also to determine questions of power and right as between the States and the
supreme Federal Government;-to    determine them  finally, and
authoritatively, without question and without appeal-without force
and even without angry controversy. A tribunal so constituted, with
such ample jurisdiction, and yet wisely limited powers, ('os not fnd
its parallel in history; and it may be added that a tribuiial so august,
not less on account of its own dignity, than of those vast and unmeasured interests which are committed to its keeping, is nowhere
else to be found among civilized nations.
In the present case the controversy between the United States and
Maryland was of a very novel as well as of a very interesting character. Each disputed the constitutionality of a law of the other.
* 4 Wheaton's Reports, 316.




JOHN MARSHALL.                        403
Each asserted that the other had transcended the limits of its sovereignty. Maryland had assumed to pass an act laying a tax on the
branch of the United States Bank in that State, which law, it was
alleged, was repugnant to the constitutional powers of the Federal
Government, and void. The State in turn attacked the constitutionality of the law of the Federal Government chartering the Bank. The
controversy was deemed of such importance that the government
directed the Attorney-General, Mr. Wirt, to appear, and the Court dispensed with its standing rule, which permitted only two counsel to argue
on each side. What shall be said of the power and brilliancy of that
discussion at the bar which called out the strength of Webster, the
culture and erudition of Wirt, and the genius of Pinkney on the one
side, and the solid learning and eloquence of Martin, Hopkinson, and
Jones on the other * —a discussion that extorted from the presiding
judge on the bench the almost involuntary exclamation that it displayed " a splendor of eloquence and strength of argument seldom if
ever surpassed?" Webster opened the debate. Wirt followed Hopkinson. Jones and Martin continued the argument, and Pinkney
reserved himself for the reply. The speech of Pinkney occupied three
days in the delivery, and is pronounced one of the ablest he ever delivered.t  The hall was filled to suffocation by a crowded, but brilliant
audience of ladies and gentlemen, and he accordingly addressed himself
with more than his usual energy and fire to the discussion of what he
somewhat affectedly called the "miserable shreds, the ragged odds
and ends, the tristes reliquice " of what had been left him of the argument. IHe had hoped to escape, he says, the discussion of the question of the constitutionality of the Bank, and had made it his humble
suit to the learned gentlemen on the other side not to conjure up by
* Of this array of counsel, perhaps the strongest and most imposing ever
witnessed at the bar of this or any other country, the venerable General Walter
Jones, now residing in Washington, is the sole survivor.
t The substance of the argument, from the memoranda taken at the time by
Mr. Wheaton, and the imperfect notes subsequently furnished by Pinkney. is all
that remains of this great speech. Judge Story, in one of his letters, remarks of
it:' I never in my whole life heard a greater speech. It was worth a journey
from Salem to hear it. Iis elocution was excessively vehement, but his eloquence
was overwhelming. His language, his style, his figures, his argument, were most
brilliant and sparkling."




404             LIVES OF THE CHIEF-JUSTICES.
unhallowed rights the ghost of a departed controversy. If the constitutionality of the Bank could not be assumed, he had hoped, at
least, it would have been submitted in respectful silence. But the
counsel had thrown down the gauntlet and entered upon the discussion. "The consequence is," he remarks, "that the question of the
constitutionality of the Bank has arisen, as it were, from the grave,
and in its very shroud presents itself before you, to demand at last the
honors of Christian burial, in such sort, that it may hereafter hope to
rest in peace beyond the reach of the lawless incantations of those
potent sorcerers and their confederates."
This question then met Chief-Justice* Marshall at the threshold, in
pronouncing the opinion of the Court. He decided it, as is well
known, in favor of the constitutionality of the Bank. I do not propose to comment upon or review his argument. The question has
been considered as a question of state since that time, and different
opinions are entertained in regard to the correctness of this decision.
It is perhaps of little practical importance now, as the bank, in the
language of one of the counsel for the government, uttered many
years afterwards, has become an "obsolete idea."  It is sufficient
here to say, that the Chief-Justice found no express grant for it in
the Constitution, but he deduced it from the power to " make all laws
which shall be necessary and proper to carry into execution" the
powers of government. The substance of his views in respect to this
grant of power is expressed in the following passage:-" We admit,
as all must admit, that the powers of the government are limited, and
that its limits are not to be transcended. But we think 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, biut consist with the
letter and spirit of the Constitution, are constitutional."
The institution of the Bank he believed to be within this definition,
and thus arrived at the conclusion that its establishment was not repugnant to the legitimate powers of the general government.




JOHN MARSHALL.                       405
The constitutionality of the Bank being thus established as a "necessary and proper " instrument to carry on the fiscal operations of the
government, the Chief-Justice next approaches the delicate, and, if
possible, still more important question as to the right of the State of
Maryland, in the exercise of its sovereignty, to tax the Banrk. The
Constitution was found to contain no express provision for the case; it
did not in terms prohibit the exercise of such a power by the State'
Maryland therefore claimed that this unlimited right of taxation was
a portion of her sovereignty which she had uever yielded to the
general government; and that, though the State might not be at
liberty directly to resist a constitutional law of Congress, yet it might
exercise its acknowledged powers upon it, and that the Constitution
had left the States this right (embracing the unlimited right of taxation,) IN CONFIDENCE that it would not be abused.
The United States, on the other hand, contended that though the
States undoubtedly possessed, as an attribute of sovereignty, the
power of taxation, to be exercised concurrently with the general
government, yet, such was the paramount character of the Federal
Constitution, that it would restrain a State from any such exercise of
this power as was in its nature incompatible with, and repugnant to,
the constitutional laws of the Union. The Bank was a "necessary
and proper" instrument to carry out the acknowledged powers of
government; the power of taxing it by the States might be exercised
so as to destroy it; therefore the right of the States to pass such a
law was denied. These were the conclusions adopted by Marshall, in
that carefully considered and closely reasoned opinion, which he pronounced in the case, and which, it has been thought, contains the
clearest and fullest exposition of constitutional law on this subject,
and of the nature and extent of the powers of the general and state
governments, ever delivered, even by himself, in any one judgment.*
The exemption of the Bank from  State taxation he rests, to use his
own language, " on a principle which so entirely pervades the Constitution, is so intermixed with the materials which compose it, so inter* Says Chancellor Kent, " A case could not be selected from the decisions of
the Supreme Ccurt, superior to this one of McCulloch vs. the State of.Maryland, for the clear and satisfactory manner in which the supremacy of the laws of
the Union have been maintained by the Court, and an undue assertion of State
power overruled and defeated."-1 Kent. Com. 427.




406             LIVES OF THE CHIEF-JUSTICES.
woven with its web, so blended with its texture, as to be incapable of
being separated from it, without rending it into shreds. This great
principle is, that the Constitution, and the laws made in pursuance
thereof, are supreme; that they control the constitutions and laws of
the respective States, and cannot be controlled by them. From this,
which may almost be termed an axiom, other propositions may be
deduced as corrollaries, on the truth or error of which, and on their
application to this case, the cause has been supposed to depend.
These are 1st, That a power to create implies a power to preserve.
2d, That a power to destroy, if wielded by a different hand, is hostile
to, and incompatible with these powers to create and to preserve.
3d, That where this repugnance exists, that authority which is supreme
must control, not yield to that over which it is supreme."  In the
application of these propositions to the case under review, he considers
the law of Maryland as imposing a tax, not on the real property of
the Bank, or on the interest which the citizens of Maryland might
hold in the institution in common with other property of the same
description throughout the State, but as a tax on the operations of
the Bank, as an instrument employed by the government of the Union
to carry its powers into execution, and therefore such tax was unconstitutional and void; it being a question not of discretion and confidence
on the part of the State, but a question of ABSOLUTE SUPREMACY as
between the powers of Maryland and those of the General Government. Viewed from this position the reasoning and conclusion of the
Chief-Justice are too strong to be shaken:-" If the States may tax
one instrument, employed by the government in the execution of its
powers," he says, "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
General Government, to an excess which would defeat all the ends of
the General Government. This was not intended by the American
people. They did not design to make their government dependent on
the States." *
* These propositions are of course too obvious to be questioned. The danger,
however, consists in extending them beyond their proper limits. They evidently
are designed to refer to a direct tax upon the means or instrument, not as property




JOHN INMARSIALL.                         407
After the searching and elaborate argument in this interesting
case, and the deliberate and unanimous opinion of the court thereon,
it might well be supposed that the question would have been considered, judicially at least, as settled. Such was not the fact. It was
again raised in Osborne vs. The Bank of the United States * at the
session of 1824, in an appeal from the Circuit Court of Ohio, which
court had rendered a decree based upon the assumption that a statute
of the State taxing the Bank of the United States, similar to that of
Maryland, was unconstitutional.t     A   revision of the opinion proin the hands of a citizen of the State, but as actually employed in the operations
of the General Government. In the case of Weston vs. the City of Charleston,
at the session of 1829, 2 Peters, 449-a case, the argument of which was illustrated by the ornate eloquence of IIayne, and the profound and varied learning of
Legare-the principle laid down in JMcCulloch vs. Maryland was carried to a
still greater extent. The question was, whether a State tax on government stock
issued for loans to the United States was constitutional; but the distinction above
alluded to, namely, whether it was a tax upon property merely, or upon the
powers of government, was not lost sight of, and indeed seems to have been the
only question at issue between the majority and minority of the Court. In pronouncing the prevailing opinion of the Court, the Chief-Justice says: " The tax
on government stock is thought by this Court to be a tax on the contract, a
tax on the power to borrow money on the credit of the United States, and consequently to be repugnant to the Constitution."' The clear and accurate mind of
Mr. Justice Thompson, with whom Mr. Justice Johnson concurred, while admitting the general doctrine, drew from it exactly the opposite inference. In his
dissenting opinion he says: "Thus, it is said the States cannot tax the Mint;
but this does not imply that they may not tax the money coined at the Mint when
held and owned by individuals. Again, it is said the States cannot tax a patent
right; but if the patentee, from the sale or use of his patent, has acquired property, or is receiving an income, it could not be intended to say that such property or income cannot be taken into the estimate of his taxable property. * * *
Congress has power to raise armies; such armies are made up of officers and
soldiers, and are instruments employed by the government in executing its
powers, and although the army as such cannot be taxed, yet it will not be
claimed that all such officers and soldiers are exempt from State taxation. Upon
the whole, considering that the tax in question is a general tax upon the interest
of money on loan, I cannot think it any violation of the Constitution of the
United States, to include therein interest accruing from stock of the United
States."
* 9 Wheaton's Reports, 738.
t The Ohio law was passed a few days before the decision of McCulloch vs.




408             lIVES\',  OF TIIE CHIEF-JUSTICES.
nounced in McCulloch vs. Maryland was requested, and granted by
the court. The Chief-Justice again discusses with great care the
questions raised and decided in the former case, particularly that
which involved the power of a State to tax the Bank. The conclusions at which he arrives, however, and which are re-established by
this judgment, are precisely the same as in the Maryland case, namely,
that the creation of the bank was a constitutional exercise of the
powers of the General Government, and that the act of the Legislature of Ohio in taxing the Bank was contrary to the Federal Constitution, and void.
This case, it may be remarked, presented another important constitutional question, namely, as to the validity of that part of the act
of Congress which authorized the Bank to sue in the Circuit Courts.
The question having been raised at the close of the argument, the
Chief-Justice and his associates considered it of such vital consequence
as to request that the case might be reargued on this point. The case
of the Planters' Bank of Georgia * involved the same question, and
the two causes came on for argument together. MIr. Harper of Maryland was the leading counsel against the claim of the Bank; and Mr.
Clay, Mr. Webster, and Mr. John Sergeant, in favor of.the jurisdiction. The opinions delivered by the Chief-Justice in both cases sustain the views of the latter gentlemen, and recognize the right of the
Bank to sue in the Circuit Courts of the United States.
At the session of the Court in 1821, another of these interesting
cases involving the gravest and most important questions of constitutional law, and of the jurisdiction of the Federal tribunals, was
brought to argument. This was the case reported under the title of
Cohens vs. the State of Virginia.t  A judgment had been rendered
against the defendants, citizens of Virginia, in the highest court of
that State having cognizance of the subject, on an information for
selling lottery tickets in a lottery to be drawn in the city of Washington, and the defendants claimed the protection of the act of Congress
incorporating the city of Washington. The cause was brought by the
Maryland, and notwithstanding the decision in that case, the Ohio state officers
proceeded to levy a tax of $50,000 imposed on the branch Bank of the United
States, established in that State.
* 9 Wheaton's Reports, 904.
t 6 Wheaton's Reports, 264.




JOIN MARSHALL.                     409
defendants to the Supreme Court of the United States on a writ of
error. The counsel for Virginia, Messrs. Barbour and Smyth,
moved to dismiss the writ on the ground that the Court had no jurisdiction, because, 1st, a State is a defendant; 2d, that no writ of
error would lie from the Supreme Court to a State Court; 3d, that
neither the Constitution nor any law of the United States has been
violated by the judgment. Messrs. Pinkney and Ogden sustained the
argument on the other side.
The questions involved in the first two points, as was observed by
the Chief-Justice, were of great magnitude, and might truly be said,
vitally to affect the Union.  In the masterly opinion delivered by
him, he states these questions in the following clear and precise
terms: "They exclude the inquiry whether the Constitution and
laws of the United States have been violated by the judgment which
the plaintiffs in error seek to review; and maintain that, admitting
such violation, it is not in the power of the government to apply a
corrective. They maintain that the nation does not possess a department capable of restraining peaceably, and by authority of
law, any attempts which may be made by a part against the
legitimate powers of the whole; and that the government is reduced
to the alternative of submitting to such attempts, or of resisting them by force. They maintain that the Constitution of the
United States has provided no tribunal for the final construction of
itself, or of the laws or treaties of the nation; but that this power may
be exercised in the last resort by the courts of every State of the
Union; that the Constitution, laws, and treaties, may receive as many
constructions as there are States; and that this is not a mischief, or if
a mischief, is irremediable. These abstract propositions are to be
determined: for he who demands decision without permitting inquiry,
affirms that the decision le asks does not depend upon inquiry.
" If such be the Constitution, it is the duty of the Court to bow with
respectful submission to its provisions. If such be not the Constitution, it is equally the duty of the Court to say so, and to perform that
task which th'e American people have assigned to the judicial department."
I cannot hope to present within the limits of this sketch, even an
epitome of the profound and unanswerable argument with which the




410               LIVES OF THE CHIEF-JUSTICES.
Chief-Justice sustained the judgment of the Court in this interesting
case-an argument, which, to say nothing of its value as a broad and
comprehensive and accurate exposition of constitutional law, presents
one of the most admirable specimens of juridical logic which ever flowed
from the pen of Marshall himself.     On a preceding page I have
noticed the principles established by, and which followed the decision
in the case of Marbury vs. Madison, and especially the principle laid
down by the Court in the opinion of Justice Story, in the case of Martin vs. Hunter's Lessees,* that the appellate jurisdiction of the Supreme Court extends to a final judgment of the highest court of a
State, where the validity of a State law is drawn in question as being
against the Constitution, treaties, and laws of the United States, and
the decision of the State court has been in favor of such their validity.
The constitutionality of the same provision was now re-examined, and
a flood of light thrown upon the subject by the luminous mind of
Marshall, and the principle placed upon a foundation from which it
can never again be dislodged.  It was held to be no valid objection to
the appellate jurisdiction of the Supreme Court, that one of the
parties was a sovereign State, and the other a citizen of that State.
The Constitution was the supreme law of the land, and the Court the
interpreter of that Constitution; and the judicial power, as originally
given, extends to all cases arising under the Constitution or a law of
the United States, whoever may be the parties.t
* 1 Whcaton's Reports, 304.
t MIr. Jefferson was never satisfied with this opinion, nor were some others of the
most eminent of the statesmen and jurists of Virginia. Judge Roane wrote a very
able review of it for the Enquirer, under the signature of Algernon Sidney. In
reference to this review Jefferson says, in a letter to Judge Johnson, that it appeared to him "to pulverize every word which had been delivered by Judge
Marshall, of the extra-judicial part of his opinion; and all was extra-judicial, except the decison that the act of Congress had not purported to give to the Corporation of Washington the authority claimed by their lottery law, of controlling
the laws of the States within the States themselves." Jefferson regarded as extrajudicial the doctrine laid down, as he says, by the Chief-Justice, that notwithstanding the amendment to the Constitution, a State could be brought to the bar of the
Supreme Court, and that Congress might authorize a corporation of its territory to
exercise legislative power within a State, and paramount to the laws of the State.
"This doctrine," he observes, "was so completely refuted by Roane. that if he
can be answered, I surrender human reason as a vain and useless faculty, given to
bewilder, and not to guic- -, "-4 Tefferson's WVritings, 371, 372.




JOHN MARSHALL.                      411
Upon the general merits of the case itself, which was afterwards
argued by Mr. Ogden and Mr. Pinlkey for the plaintiffs, and by Mr.
Webster for the defendants, the Chief-Justice delivered a brief opinion,
holding that the act of Congress incorporating the city of Washington,
under which the sale of the lottery tickets was authorized, was no defence to an indictment for a violation of the statutes of Virginia.
The act of Congress did not authorize the corporation to force the sale
of lottery tickets in states where such sale was prohibited by law.
I am justified in breaking the thread of this hasty review of ChiefJustice Marshall's constitutional decisions, by a brief reference
to one case not included under this head, which seems to     demand some notice, both on account of its novelty and interest,
as well as of its own intrinsic importance.  It is the case of
Johnson vs. McIntosh,* argued and decided at the session of
the Court in 1823-a case which opened the entire range of discussion relative to the origin and ground of the title to lands
claimed by the European nations in America, and of the right now exercised by the government of the United States over territories occupied by the Indian tribes. The plaintiff claimed title to lands in
Illinois, under a grant from the Piankeshaw Indians; the defendant
under a grant from the United States. The opinion of the Court, delivered by the Chief-Justice, covers the entire ground, and leaves little
room for further discussion. It may be taken as a complete text-book
on the subject, and has been held in all subsequent cases to be an ultimate and settled rule of decision. He traces, with a clear and infallible precision of statement, the origin of the right claimed by discovery,
the recognition of the principle by the European powers, and its adoption by the United States; he examines the foundation and limitation
of the right of conquest, the application of the principle to the case
of the Indian savages, and the nature generally of the Indian titles.
These titles, as ultimate titles to the fee of the soil, could not now be
sustained in America. The fee originally vested in the British government by discovery, according to the acknowledged law of civilized nations, had passed by the Revolution to the United States, and the
Indian title was a right of occupancy merely, which the discoverers,
or in this case, the government, had the exclusive right of acquiring
* 8 Wheaton's Reports, 543.




412             LIVES OF THE CHIEF-JUSTICES.
The magnitude of the interests in litigation, and the able and elaborate argunilts at the bar, rather than any intrinsic difficulty in the
subject itself, as the Chief-Justice remarks, had impelled him to a more
than usually carefcul and mature consideration of the subject under
discussion.
Returning to a consideration of the constitutional judgments and
opinions of Chief-Justice Marshall, the next case that meets us is the
famous case of Gibbons vs. Ogden,* known as the Great New York
Steamboat case, which was decided at the session of the court in
1824. Though belonging to the same class of cases which have been
heretofore considered, involving a question of sovereignty between State
legislation and the Federal government; yet it presented an entirely
new point for consideration, namely, as to the construction and extent of that clause of the Constitution vesting Congress with power
to regulate commerce among the several states. The State of New
York had granted to Messrs. Fulton and Livingston the exclusive
right to navigate all the waters of the State with vessels moved by
steam. The plaintiff, Ogden, to whom the right had been assigned,
filed a bill for a perpetual injunction against Gibbons, who had infringed upon this right by navigating the river with steamboats, duly
enrolled and licensed for the coasting trade, under an act of Congress. The question was, as to the Constitutionality of the law of
New York. Chancellor Kent sustained the injunction, and the decree
had been affirmed by the New York Court for the Correction of
Errors. From this judgment the cause was carried to the Supreme
Court of the United States. It has been said, that no cause, up to
that date, in the Supreme Court, had ever excited a greater degree of
interest and expectation in the country than this, and that none was
ever argued with greater ability. The Attorney-General Wirt, and
Daniel Webster, were the counsel who contested the constitutionality
of these laws; their opponents were Emmett and Oakley, of New
York, who, with the zeal natural to citizens of the great State which
had granted the exclusive privilege, and with all the resources which
the highest legal attainments and the most accomplished skill could
supply, vindicated the laws in question. It was a most brilliant pas* 9 Wheaton's Reports, 1.




JOhN RUTLEDGE.                            413
sage at arms, in a forensic tourney; * a combat, as Wirt had predicted, well worth witnessing.   The passage between Wirt and Emmett, which is preserved in the report, and is so familiar as to be
repeated in schoolboy declamations,t is certainly one of the finest that
is anywhere to be found in the range of forensic discussions, and
would alone suffice to relieve a multitude of dull and tedious legal
* See Kennedy's Life of Wirt, Vol. II. p. 142. In a letter to Judge Carr, a few
days before the argument Wirt writes: " To-morrow begin my toils in the Supreme Court, and about to-morrow week will come on the great Steamboat question from New York. Emmett and Oakley on one side, Webster and myself on
the other. Come down and hear it. Emmett's whole soul is in the cause, and he
will stretch all his powers. Oakley is said to be one of the first logicians of the
age; as much a Phocion as Emmett is a Themistocles; and Webster is as ambitious as Casar. Ie will not be outdone by any man, if it is within the compass of
his power to avoid it. It will be a combat worth witnessing."
t Mr. Kennedy, in his Life of Wirt, says, that the part of the sentence below
which is italicised, is interpolated after the reply of Wirt, and when the case was
mdole up for publication. "New York," says Emmett, alluding to the results
of the genius of Fulton, "may proudly raise her head and cast her eyes over
the whole civilized world; she may there see its countless waters bearing on
their surface countless offerings of her munificence and wisdom. She may fondly
calculate on their speedy extension in every direction and through every region,
from Archangel to Calcutta, and justly arrogating to herself the labors of the
man she cherished, and conscious of the value of her own good works, she may
turn the mournful exclamation of.Jneas into an expression of triumph, and
exultingly ask"< Quae regio in tenris, nostri non plena laboris?'"
The reply of Wirt was one of the happiest efforts of his genius:" Sir: it was not in the moment of triumph, nor with the feelings of triumph,
that flEneas uttered that exclamation. It was when with his faithful Achates by
his side, he was surveying the works of art, with which the palace of Carthage
was adorned, and his attention had been caught by a representation of the battles
of Troy. There he saw the sons of Atreus and Priam, and the fierce Achilles.
The whole extent of his misfortunes, the loss and desolation of his friends, the fall
of his beloved country rushed upon his recollection:
Constitit, et lachrymans, quis jam locus, inquit Achate,
Que regio in terris, nostri non plena laboris?'"
Wirt pressed the application in the most felicitous and appropriate language.
If the state of things should continue, if the anarchy which New York had sown
should not be extirpated, and a war of legislation should follow, the Constitution
would ultimately fall, and our republican institutions perish. And what, then,




414               LIVES OF THE CHIEF-JUSTICES.
discussions.  Leaving the reader, however, if his curiosity prompts,
to study all that remains of the discussion, as it is found in the published report, I shall proceed to notice briefly the final result of the
case, and the conclusions laid down by the Chief-Justice in pronouncing the judgment of the court.
The constitutionality of these laws had been maintained in New
York by the Legislature, the council of revision, even in Jay's time,
and unanimously by the judges of the Supreme Court and the Court
for the Correction of Errors.  In Livingston vs. Van Ingen,* in 1812,
the Chancellor had indeed refused to restrain, by injunction, a violation of the right, but rather from serious doubts as to the propriety
of the remedy than from any conviction of the unconstitutionality of the
laws.  This order, however, had been unanimously reversed by the
Court for the Correction of Errors, of which the judges of the Supreme Court were ex-officio members, and at a time too when the
latter court was presided over by JAMES KENT, and dignified and
ennobled by the learnilg and ability of SMITH THOMPSON, AMBROSE
SPENCER, WILLIAM W. VAN NESS, and JOSEPH C. YATES.t           In the
present case, Kent, who had then become Chancellor, had, without
hesitation, granted an injunction to restrain the infringement of the
right claimed under these laws.t   " We must be permitted," he remarks in his opinion, "to require, at least, the presence and clear
would be the effect? Despotism would everywhere triumph, and would cover the
earth with the mantle of mourning. " Then, sir," he exclaimed, "' hen New York
shall look upon this scene of ruin, if she have the generous feelings which I believe her to have, it will not be with her head aloft in the pride of conscious triumph,'her wrapt soul sitting in her eyes.' No, sir, no! Dejected with shame
and confusion, drooping under the weight of her sorrow, with a voice suffocated
with despair, well may she exclaim:
-      quis jam locus
Quse reglo in terris, nostri non plena laboris."
* 9 Johnson's Reports, 507.
f Each of these Judges delivered opinions in favor of sustaining the laws of
New York, and of their constitutionality, except Judge Spencer, who, being related
to one of the parties, declined giving any opinion. The opinions of Chief-Justice
Kent and Judge Thompson upon the Constitutional question, are unusually vigorous and able, and should be carefully studied, in connexion with that of ChiefJustice Marshall, by those who desire thoroughly to investigate the subject on
both sides.
I Ogden Is. Gibbons, 4 John. Ch. R. 150.




JOHN MARSHALL.                       415
manifestation of some constitutional law, or some judicial decision of
the supreme power of the Union, acting upon those laws, in direct
collision and conflict, before we can retire from the support and
defence of them. We must be satisfied thatNeptunus muros, magnoque emota tridenti
Fundamenta quatit.
And the Court for the Correction of Errors had unanimously approved the decision.
It required no small degree of moral courage and firmness on the
part of the Supreme Court, to unsettle a decision thus sustained; to
restrain a power that had been exercised by one of the States, almost
without question, from the foundation of the Union; to lop off, with
the keen edge of the Constitutional axe, a branch of State sovereignty,
which by the growth of years had become so firmly engrafted as to be
scarcely distinguishable from the parent trunk; and to assert the supremlacy of the Federal authority over State legislation, in a case
where its existence had been expressly denied by one of the ablest and
most accomplished jurists of that, or any age,* and one who was
supposed to some extent at least to share the same opinions, and was
a member of the same political school with Marshall himself. But the
Chief-Justice was fully equal to the responsibility, though he seems to
have encountered it with a deep sense of its magnitude. Referring to
the principle contended for by New York, he remarks: " It is supported by great names-by names which have all the titles to consideration, that virtue, intelligence, and office can bestow. No tribunal
can approach the decision of this question without feeling a just and
real respect for that opinion which is sustained by such authority;
but it is the province of this Court, while it respects, not to bow to it
implicitly; and the judges must exercise, in the examination of the subject, that understanding which Providence has bestowed upon them,
with that independence which the people of the United States expect
from this department of government."  The result of the examination
which the Chief-Justice thus bestowed upon the subject was, that the
laws of New York were repugnant to that clause of the Constitution
which authorizes Congress to regulate commerce among the several
* Chancellor Kent.




416              LIVES OF THE CHIEF-JUSTICES.
States. This conclusion is sustained by an argument of wonderful
acuteness of reasoning, and full of subtle distinctions, but built up and
supported by those well-known principles of Constitutional construction which pervade all his opinions.  Commerce among the States, he
held, cannot stop at the external boundary line of each State, but
may be introduced into the interior. The power to regulate commerce, conferred by the Constitution on Congress, comprehends navigation within the limits of every State in the Union, so far as that
navigation may be in any manner conecsted 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 under
consideration applies. This power, exercised in pursuance of the Constitution, is supreme, and State laws must yield to it, even though enacted under powers acknowledged to remain in the States.  The act
of Congress for enrolling and licensing vessels to be employed in the
coasting trade, authorizes the navigation of such waters, and embraces all vessels, whether propelled by sails and oars or by steam.
After being so enrolled, they are entitled to the same privileges, and
can no more be restrained from navigating waters, and entering ports
which are free to such vessels, than if they were wafted on their voyage by the winds, instead of being propelled by the agency of fire.
The one element may be as legitimately used as the other, for every
commercial purpose authorized by the laws of the Union; and the
act of a State inhibiting the use of either, to any vessel having a license under the act of Congress, comes in direct collision with the
Constitutional powers of the general government, and is void.*
In this opinion, which, though as ingeniously reasoned, is perhaps
* The extent to which it has been attempted to carry this principle, may be seen
by reference to the recent case of Veasie et a!. vs. Moor, December Term, 1852,
14 How. 568, in which it was argued that a law of the State of Maine, granting
exclusive navigation in the upper part of Penobscot River, to a manufacturing
company, who were to improve that part of the river, was contrary to the Constitution of the United States. The river lies entirely within the State of Maine,
and the part in which the exclusive privilege was granted was not navigable,
being cut off by several dams, erected for manufacturing purposes. This extraordinary proposition, however, found no favor with the Court. The law of Maine
was held to be valid; Mr. Justice Daniel delivering the opinion, from which there
appears to be no dissent.




JOHN MARSHALL.                     417
less conclusive, than some of those masterly arguments upon which
the fame of Marshall as a jurist is built, he make some strictures upon
that doctrine of a rigid construction of constitutional power which has
been a cardinal theory with some of the ablest and wisest statesmen
the country has produced, and especially those of his own State. In
the frank exposition of his views upon all constitutional questions
which I have designed to give, it would not be proper to pass over or
conceal his opinions upon these points. It must be confessed that he
was not an advocate of a strict construction of the Constitution, as
that doctrine was understood by those illustrious men who formed the
republican party. And yet, on the other hand, justice requires it to
be also said, that he never assumed or advocated the doctrine that a
power could be exercised which was not granted either expressly in
the words of the Constitution, or by necessary implication. " What do
gentlemen mean by a strict construction?" he inquires in this opinion.
" If they contend only against that enlarged construction which would
extend words beyond their natural and obvious import, we might
question the application of the term, but should not controvert the
principle. If they contend for that narrow construction which, in
support of some theory not to be found in the Constitution, would
deny to the Government those powers which the words of the grant,
as usually understood, import, and which are consistent with the
general views and objects of the instrument; for that narrow construction which would cripple the Government, and render it unequal
to the objects for which it is declared to be instituted, and to which
the powers given, as fairly understood, render it competent; then we
cannot perceive the propriety of this strict construction, nor adopt it
as. the rule by which the Constitution is to be expounded." And
again, at the close of, the opinion, "Powerful and ingenious minds,
taking, as postulates,'that the powers expressly granted to the Government of the Union, are to be contracted by construction into the narrowest possible compass, and that the original powers of the States are
retained, if any possible construction will retain them, may, by a
course of well digested, but refined and metaphysical reasoning, founded on these premises, explain away the Constitution of our country,
and leave it a magnificent structure, indeed, to look at, but totally
unfit for use. They may so entangle and perplex the understanding,
27




418               LIVES OF THE CHIEF-JUSTICES.
as to obscure principles, which were before thought quite plain, and
induce doubts where, if the mind were to pursue its own course, none
would be perceived. In such a case, it is peculiarly necessary to recur
to safe and fundamental principles, and, when sustained, to make them
the tests of the arguments to be examined."
It was at this term    that SMITH THOMPSON, of New York, took
his seat for the first time on the bench of the Supreme Court, in place
of Brockholst Livingston, who had died the previous year.*      Judge
* The name of LIVLNGSTON is conspicuous in the annals of the State of New
York. The family is of Scottish origin, and at a very early period seated what is
now known as the Livingston Manor, on the Hudson River, in Columbia county,
New York. The three brothers, Robert R., Brockholst, and Edward Livingston,
were all men of commanding abilities. The Chancellor was the eldest, and
figured conspicuously in the revolutionary troubles, and in the early political
contests of the State. Edward Livingston, the youngest of these brothers, is too
well known as a statesman and jurist to require even a passing notice in this
place. Elected in 1794, at the age of thirty years, a member of Congress,
he entered upon a brilliant career, which his removal to New Orleans, in 1804,
enabled him to pursue with still more eminent and flattering success. Again
elected to the House of Representatives in 1823, transferred to the Senate in 1829,
appointed Secretary of State in 1831, and Minister to France in 1833, where,
thirty years before, his brother, the Chancellor, had preceded him;-all these wellmerited honors can scarcely add to the undying fame of the civilian and jurist
who framed the code of Louisiana.
BROCKHOLST LIVINGSTON is a name not so well known in our day. He was
born about the year 1757, and at the declaration of Independence had just arrived
at the age of manhood. He took an active and decided part in behalf of his
country in the struggle with Great Britain, and at the close of the war devoted
himself to the practice of the law, to which he had been educated. Mr. Livingston
was for many years a prominent and successful advocate at the bar. In the earlier
New York reports his name frequently appears on the record as counsel. It
seems, too, that he engaged in some of the criminal trials of that period, as we
find him employed for the defence in the prosecution of Frothinltham, before the
New York Oyer and Terminer, in 1799, for a libel on General Hamilton. On the
8th of January, 1802, Livingston and Smith Thompson were appointed puisne
Judges of the Supreme Court of the State, Morgan Lewis being then Chief-Justice,
and Kent and Ratcliffpuisnes. This place he held until 1806, when he resigned
it on his appointment as one of the Associate-Justices of the Supreme Court of the
United States. Judge Livingston died a few days after the close of the session of
the Court, on the 18th of March, 1823, in the sixty-sixth year of his age.' He had served his country," says Mr. Wheaton, in a brief notice of the death
of Judge Livingston, "with distinguished military reputation during the war of




JOHN MARSHALL.                           419
Thompson was Secretary of the Navy at the time of his appointment,
and being reluctant to accept the office, the matter was for a little
while held in suspense. During the interval the name of Chancellor Kent
was brought forward by some of his friends.     The main objection to
this accomplished jurist seems to have been his connexion with the
Federal party, a barrier which even in those times of moderate party
heat, could not be entirely disregarded.   Notwithstanding this, some
of the warmest friends of President Monroe recommended the selection of the Chancellor, in case Judge Thompson should decline, and
among them the Attorney-General, Mr. Wirt, who wrote a long and
earnest letter to the President, urging the appointment irrespective of
party considerations, and as a matter of national, not of mere local interest.  It is not certain but that the President might have considered
the suggestion favorably, if the acceptance of Judge Thompson * had
not rendered further action on the subject unnecessary.
the revolution, and subsequently filled several important civil stations at home
and abroad. He was an accomplished classical scholar, and versed in the elegant
languages and literature of the southern nations of Europe. At the bar he was
an ingenious and learned advocate, fruitful in invention, and possessing a brilliant
and persuasive elocution. On the bench his candor and modesty were no less
distinguished than his learning, acuteness, and discrimination. His genius and
taste had directed his principal attention to the maratime and commercial law;
and his extensive experience gave to his judgments in that branch of jurisprudence a peculiar value, which was enhanced by the gravity and beauty of his
judicial eloquence. In private life he was beloved for his amiable manners and
general kindness of disposition, and admired for all those qualities which constitute the finished gentleman. He died with the deep regret of all who knew him;
leaving behind him the character of an upright, enlightened, and humane judge,
a patriotic citizen, and a bright ornament of the profession. Isque et oratorurn
in numero est habendus, etfuit reliquis rebus ornatus, atque elegans."
* SMITH TIOMPSON brought to the bench of the Supreme Court the thorough julicial education and experience acquired by a service of seventeen years in the
Supreme Court of New York, at a time when that tribunal might claim, in point
of dignity, talent, and learning, to rank with any in the civilized world. Educated to the bar, and admitted to practice at an early age, he devoted himself with
untiring energy and industry to his profession. A brief service in the State legislature could scarcely be said to interrupt these labors, which were continued with
unabated ardor down to the time of his elevation to the bench of the New York
Supreme Court. During the period of Thompson's practice, the New York bar
was adorned with a galaxy of talent, which, without the least disparagement to




420               LIVES OF THE CHIEF-JUSTICES.
This was the first change that had been made in the Supreme
Court since Judge Story's appointment in 1812. I may here properly
note the few other changes which occurred during the remainder of
the bar of any other State, may be pronounced wholly unrivalled. Among them
were such men as the Livingstons-Brockholst and Edward-Hamilton, Harrison,
Hoffman, Burr, Pendleton, and the then junior members of the profession, such
as Spencer, Van Vechten, Henry, Ogden, Elisha Williams, and-" the brightest
genius of them all "-William W. Van Ness. The first and second volumes of
Johnson's cases are the only published New York reports, anterior to the time of
Judge Thompson's appointment to the bench. They do not show him to have
been at that time engaged in a very extensive counsel practice in the Supreme
Court, many, and indeed most of the important cases being committed to the care
of the veterans of the profession-Hamilton and Harrison, Livingston and Burr.
Pendleton and Troup. That he stood deservedly high is evident, however, from
the fact of his being chosen, while still comparatively a young man, from among
such a bar, and appointed with Brockholst Livingston to a seat on the bench of
the Supreme Court. This appointment was made on the 8th of January, 1802.
Morgan Lewis was then Chief-Justice, and James Kent one of the puisnes, having
been already four years on the bench. On the election of Judge Lewis as Governor of the State, in 1804, Kent became Chief-Justice, and Judge Rateliff having
resigned, Ambrose Spencer and Daniel D. Tompkins were appointed Associates.
Such was the New York Supreme Court at that period and for some years afterwards-KENT, LIVINGSTON, THOMPSON, SPENcER, and ToMPKLNs —an association of
judicial talent, that was never before, and has never since, been seen at any one
time in our State. On the appointment of Kent as Chancellor, February 25thy
1814, Judge Thompson succeeded, him as Chief-Justice. He presided over the
Court until his appointment as Secretary of the Navy, and was succeeded in the
Chief-Justiceship by Judge Spencer, February 9th, 1819
Judge Thompson took his seat on the bench of the Supreme Court of the United
States on the tenth day of February, 1821, and continued in the discharge of its
duties to the time of his death, in 1843. Thus it will be seen that he was on the
bench in all nearly thirty-seven years-one of the longest, as it certainly is one of the
most honorable, judicial careers on record. His opinions in the United States
Supreme Court are to be found in the last four volumes of Wheaton and the sixteen volumes of Peters' Reports; those in the New York Supreme Court, in the
first fifteen volumes ofJohnson. The author of the eulogy on Judge Spencer very
properly characterizes the Reports of Johnson as "by far the most valuable, reliable, and authoritative record of American common law," anywhere to be found.
Those containing the opinions of Judge Thompson abundantly show that the record
of this common law bears indelibly upon it the impress of his vigorous and logical mind. With Kent and Spencer he may justly claim his fall share in the great
work which the old Supreme Court entered upon, and so successfully pr'osecuted-that " of building up and consolidating within this State a system arnd




JOHN MARSHALL.                           421
the period in which Marshall presided over the deliberations of the
Court. On the death of Mr. Justice Todd,* the vacancy was filled
by the appointment, May 9th, 1826 of ROBERT TRIMBLE, of Kenbody of common law, applicable and adapted to the government and institutions
of the country."
* THOMAS TODD was born in the State of Virginia on the 23rd of January,
1765. Having lost his parents in early youth, and been deprived of the limited
patrimony bequeathed him by his mother, he emigrated with the family of Judge
Innis to Kentucky in the spring of 1786. While residing in the family of the
Judge he was engaged in teaching the daughters of his friend by day, and at
night prosecuting the study of the law by fire-light. He was admitted to the bar
soon after he came to Kentucky, and practised for several years with reputation
and success. Appointed clerk of the Federal Court for the district of Kentucky,
he was soon after, on the erection of the State Government, chosen clerk of the
Court of Appeals. This office he held until 1801, when he was appointed Judge
of the Court of Appeals, and in 1806, on the resignation of Judge Muter, ChiefJustice. His appointment to the office of Associate-Justice of the Supreme Court
of the United States was the first intimation to him that he had been thought of
for that station In making this selection President Jefferson is said to have
adopted a mode different from that pursued in later times. lie requested each
delegate in Congress from the States composing the circuit to communicate to
him a nomination of their first and second choice. Judge Todd was the first or
second upon the nomination of every delegate, although to some of them he was
personally unknown. lie was accordingly appointed, and continued in the honorable discharge of the duties of Judge of the Supreme Court until his death,
February 7th, 1826.
Judge Story has spoken of the intellectual characteristics of his associate with
his usual discrimination: " He had uncommon patience and candor in investigation; great clearness and sagacity of judgment; a cautious but steady energy; a
well-balanced independence; a just respect for authority, and at the same time an
unflinching adherence to his own deliberate opinions of the law. His modesty
imparted a grace to an integrity and singleness of heart which won for him the
general confidence of all who knew him. He was not ambitious of innovations
upon the settled principles of the law; but was content with the more unostentatious character of walking in the trodden paths of jurisprudence. From his diffident and retiring habits, it required a long acquaintance with him justly to appreciate his juridicial as well as his personal merits. IIis learning was of a useful
and solid cast; not perhaps as various or as comprehensive as that of some men;
but accurate, and transparent, and applicable to the daily purposes of the business
of human life. In his knowledge of the local law of Kentucky he was excelled
by few; and his brethren drew largely upon his resources to administer that law,
in the numerous cases which then crowded the docket of the Supreme Court from
that judicial circuit. What he did not know, he never affected to possess; but




422               LIVES OF THE CHIEF-JUSTICES.
tucky.* This gentleman died after a service of little more than two
years, and his place was filled, March 7th, 1829, by the appointment
of JOHN McLEAN, of Ohio, at present one of the Associate-Justices of
sedulously sought to acquire. He was content to learn without assuming to dogmatize.  Hence he listened to arguments for the purpose of instruction, and
securing examination, and not merely for that of confutation or debate.
Among his associates he enjoyed an enviable respect, which was constantly increasing as he became more familiarly known to them. His death was deemed
by them a great public calamity; and in the memory of those who survived
him, his name has ever been cherished with a warm and affectionate remembrance."
Judge Todd was twice married. Col. C. S. Todd, so honorably known for his
gallant military services, was one of his sons by the first marriage. His second
wife, whom he married in 1812, was the youngest sister of Mrs. Madison, and
widow of Major George Washington, a nephew of the General. He left one
daughter and two sons by this marriage.
* The following notice of JUDGE TRIMBLE forms the appropriate introduction to
one of the volumes of Peters' Reports:" The Honorable Robert Trimble, one of the Associate-Justices of this Court,
died at his residence in Paris, Kentucky, in September, 1828.
"Mr. Justice Trimble was born in Augusta County, Virginia, in 1777, and was
the son of Mr. William Trimble, one of the earliest settlers in Kentucky-a virtuous man, whose bold, firm, and enterprising character induced him to seek an
increase to his fortunes by establishing himself on the frontiers, encountering all
the dangers and hardships of a new and advanced settlement.
" Mr. Justice Trimble accompanied his father when he emigrated, and the early
years of his life were passed in agricultural industry; and frequently in the
amusements and toils of the chase, upon the success of which settlers often depended for food. He was sometimes engaged in defence against Indian invasion, to
which the borderers were then constantly exposed. He was distinguished in his
youth for his conduct, his courage, and his sagacity; and was acknowledged as a
leader by his associates.
"The native and powerful energies of his mind could not be restrained by the
situation in which he was placed; and he became desirous of obtaining an education which would fit him for higher duties. By teaching an English school he
procured the means of entering Bourbon Academy; and he afterwards was a
student in the Kentucky Academy in Woodford county, where he completed his
classical attainments. He then studied law, and in 1800 commenced the practice
of his profession at Paris, in Bourbon County, where he married. His widow and
a numerous family of children survive him.
" Mr. Justice Trimble always enjoyed the highest consideration and confidence of
his fellow-citizens. In 1802 he was elected to the House of Representatives of
Kentucky; but in the following year he declined a re-election, determining to




JOHN MARISHAALL.                         423
the Court.   Judge Washington died in 1829, after a service of thirty
years, and was succeeded January 6th, 1830, by HENRY BALDWIN, of
Pennsylvania, and on the death of Mr. Justice Johnson, JAMES M.
WAYNE, one of the present judges of the Court, was appointed,
January 9th, 1835. Justices McLean and Wayne are the only present members of the Court who were members also in Marshall's time,
the latter having come to the bench the last term at which the ChiefJustice presided.
The decision in the case of Gibbons vs. Ogden, relative to the
power vested in Congress to regulate commerce among the States,
devote himself to his profession-a duty enjoined upon him by his narrow fortunes. In 1807, his professional reputation and character were such that he was
appointed a judge of the Supreme Court of Kentucky; which situation he held
for two years with great reputation. He relinquished the office to resume the
practice of his profession; and in 1810 he refused the commission of Chief-Justice
of the State. In 1813 he again declined the office of Chief-Justice: and having
assiduously and successfully devoted himself to the bar until 1817, he was in that
year appointed district judge of the United States, for the district of Kentucky.
In May, 1826, he received, from President Adams, the commission of AssociateJustice of the Supreme Court of the United States.
"In the performance of his judicial duties in Kentucky, in the state courts, and in
the district and circuit courts of the United States, Judge Trimble obtained the
respect and esteem of the profession, and of his fellow-citizens. Learned in the
law, just and discriminating in his judicial investigations, his decisions were
characterized by great legal accuracy, research, and perspicuity; and by an enlarged and liberal equity. In the Supreme Court of the United States, Mr.
Justice Trimble maintained and increased the character and reputation which had
placed him upon that bench. His opinions were clear and comprehensive, illustrated and enriched by all the legal learning their subjects demanded; and they
gave to those who heard them the surest anticipations of increasing usefulness
and talents, had it been permitted to him to remain in the performance of the
high functions of his station.
" In private and domestic life Mr. Justice Trimble was universally beloved and
respected. Gentle, conciliating, and kind in his manners and disposition; honorable and faithful in all his transactions; every one who knew him sought his
friendship, and was proud of attaining it. As a husband and a father, his mild
and amiable virtues endeared him to those with whom he was connected in these
relations; and his home was always the abode of cheerfulness and content. He
was a patriot, and a firm republican; and he was devotedly attached to the Union;
always maintaining those constitutional principles which have been declared
from the tribunal of which he had been an efficient and much honored member."




424            LIVES OF THE CHIEF-JUSTICES.
was followed by the case of Brown vs. the State of Maryland in
182Y,* involving the question of the extent of the power to regulate
foreign commerce. The case was argued with great ability and
learning. Mr. Wirt being counsel on the one side, and the present
Chief-Justice on the other.t  The judgment of the Court, pronounced
by Chief-Justice Marshall again swept out of existence, and expunged
from the statute-book, the law of a State as being repugnant to the
paramount authority of the Federal Government. It was held that
the act of the Maryland Legislature, which required every importer of
goods, by wholesale, bale, or package, to take out a license, and pay
for it, under certain penalties or forfeitures for neglect, was repugnant
to the Constitution of the United States, and void; inasmuch as it
belonged to Congress to regulate foreign commerce, and the States
were prohibited by the Constitution from laying a duty on imports.
It was contended by the counsel for the State of Maryland that
the construction of the power of Congress to the extent claimed by
the General Government would abridge the acknowledged power
of a State to tax its own citizens, or their property within its territory.  This proposition was considered by the Court and discussed by the Chief-Justice in his written opinion. He admitted the
power to be sacred, but denied that it might be used so as to obstruct the free course of a power given to Congress. Congress was
vested by the Constitution with authority to regulate commerce
between the States. The power is co-extensive with the subject on
which it acts, and cannot be stopped, as had already been decided il
Gibbons vs. Ogden, at the external boundary of a State, but must
enter its interior. It is a component part of the power to regulate
commerce, not only to authorize the importation, but to authorize the
importer to sell. The right to sell, therefore, is connected with the
law permitting importation, as an inseparable incident; and any
penalty inflicted on the importer for selling the article, in his character
of importer, must be in opposition to the act of Congress which authorizes the importation, and is therefore void. The principle, however,
was not carried so far as to deny the right of a State legislature to
tax imported goods after they had become mixed with and incorpo* 12 Wheaton's Reports, 419.
t See subsequent sketch of Chief-Justice Taney.




JOHN MARSHALL.                         425
rated into the general mass of property of the State. On the contrary, it was admitted that in such case they were liable to State
taxation.
The authority of Brown vs. the State of Maryland, as well as that
of Gibbons vs. Ogden, has been thought to sustain the doctrine, repeatedly advanced since Marshall's time, and discussed with great
ability, and, it may be added, with no small degree of warmth, both
at the bar, and in the consultation room of the judges, that by the
grant of power to. Congress to regulate commerce, the States are absolutely prohibited from passing any laws on the subject whatever,
whether Congress shall have exercised the power or not, the grant to
the General Government being in its nature exclusive. In some of
these subsequent discussions,* the opinions of Chief-Justice Marshall in
the two cases alluded to, have been cited as sustaining this doctrine.
A case, however, decided at the session of the Court in 1829, Wilson
vs. Blackbird Creek Marsh Company,t seems to show that this is not
correct. In that case a chartered company was authorized, under a
State law, to make a dam across a navigable tide-water creek. A
licensed sloop, not being able to pass, broke the dam; and in an
action by the company for damages, the defendant insisted that the
creek was a navigable highway, over which the power of Congress to
regulate commerce, including navigation, extended; and that the
State law  which authorized an obstruction to this navigation was,
therefore, void. The Chief-Justice in delivering the opinion of the
* The subject has been discussed in various cases since that time, and among
others in New York vs. Miln, 11 Peters, 102; Prigg vs. the Commonwealth of
Pennsylvania, 16 Peters, 539; and the Massachusetts, Rhode Island, and New Hampshire license cases, 5 Howard, 504; all of which are referred to in the subsequent
sketch of Chief-Justice Taney. In the latter cases in particular the whole question was fully considered, and from the opinions of the Chief-Justice, and Judges
Daniel, Catron, Woodbury, and Nelson, it seems to be the settled judgment of the
Court, that this power is not exclusive, but may be exercised by the States,
especially in matters of mere police regulation, except where it comes in conflict
with an act of Congress. Mr. Justice Daniel, in his opinion in these cases, enters a
vigorous protest against the doctrines contained in the decision of Brown vs.
Maryland. The question was also raised and discussed in the New York and
Boston passenger cases, and in the Wheeling Bridge case. See subsequent sketch
of Chief-Justice Taney.
t 2 Peters' Reports, 245.




426             LIVES OF THE CHIEF-JUSTICES.
Court, says: "If Congress has passed any act which bore upon the
case, any act in execution of the power to regulate commerce, the
object of which was to control State legislation over those small navigable creeks into which the tide flows, and which abound throughout
the lower country of the middle and southern States; we should feel
not much difficulty in saying that a State law coming in conflict with
such act would be void. But Congress has passed no such act. The
repugnancy of the law of Delaware to the Constitution is placed
entirely on its repugnancy to the power to regulate commerce with
foreign nations and among the several States; a power which has
not been so exercised as to affect the question.
" We do not think that the act empowering the Blackbird Creek
Marsh Company, to place a dam across the creek, can, under all the
circumstances of the case, be considered as repugnant to the power to
regulate commerce in its dormant state, or as being in conflict with
any law passed on the subject." *
It will be seen from the foregoing review that the tendency of the
decisions of the Supreme Court during the entire period of ChiefJustice Marshall's service on the bench was to sustain the authority of
the Federal Government, and to abridge the powers claimed to be
exercised by the States. The Court boldly assumed jurisdiction to
declare an act of Congress void, as being repugnant to the Constitution, yet this had been actually exercised only in one or two instances,
while the power to declare the laws of the States void as against the
Constitution of the United States, had been very freely used, and particularly in some of the prominent cases which have already been
noticed.t
A case occurred at the session of the Court in 1830, in which it
was attempted to carry the principles established in some of these
decisions to a very unwarrantable extent. The case referred to was
the Providence Bank vs. Billings and Pittman.t The Providence
Bank had been chartered by the Legislature of Rhode Island in 17 91;
* See dissenting opinion of Chief-Justice Taney in Wheeling Bridge case, 13
Howard's Reports, 585, 587.
t In a note to the case of Fletcher vs. Peck, vol. 2. Cond. Rep., p. 225, the
reporter enumerates twenty-six State laws as having been declared unconstitu
tional.
t 4 Peters' Reports, 504.




JOHN MARSHALL.                     427
and in 1822 the Legislature of that State had passed an act imposing
a duty "on licensed persons and others, and bodies corporate within the
State." The Providence Bank resisted the payment of the tax on the
ground that the act of the Legislature was repugnant to the Constitution of the United States, inasmuch as it impaired the obligation of
the contract created by the act of incorporation. The cases of Fletcher
vs. Peck, and of Dartmouth College, it was alleged, had established
the principle that a legislative grant to a corporation was a contract
within the meaning of the Constitution; and the cases of McCulloch
vs. Maryland, and Weston vs. the City of Charleston, had also established the principle that the power of imposing a tax upon the corporation involved the power of destroying it, and was therefore contrary
to the provision of the Constitution, which prohibited the States from
passing laws impairing the obligation of contracts.
The reasoning in the cases referred to certainly appears to countenance the doctrine advocated by the counsel for the Rhode Island
Bank, and, taking these principles as abstract propositions, it would
seem difficult to draw the line of distinction. That distinction, however, was drawn by the Court, and the principle very strictly laid
down by the Chief-Justice that the power of taxing a bank incorporated by a State legislature was not a violation of the Constitution of
the United States. Such a corporation, it was admitted, was a contract. But the act creating the contract contained no stipulation
exempting the bank from taxation. The power of taxation was one
of vital importance; it was an incident of sovereignty essential to the
existence of government, and the relinquishment of such a power was
never to be assumed. It might be exercised in all cases by a State,
except when conflicting with a constitutional law of Congress, the
supremacy of which was always to be recognized; and such he contends was the principle recognized in McCulloch vs. Maryland, and in
Weston vs. the City of Charleston. The sovereignty of a State extends to everything which exists by its own authority, or is introduced
by its own permission; but it does not extend to those means which are
employed by Congress to carry into execution powers conferred on that
body by the people of the United States. The law of Rhode Island
taxing the Bank, was therefore held to be constitutional and valid.
At the same term of the Court another case of very great interest




428             LIVES OF THE CHIEF-JUSTICES.
arose, Craig et al. vs. the State of Missouri,* involving the question of
the validity of a State law under that clause of the Constitution which
declares that no State shall "emit bills of credit." The State of
Missouri had passed an act for the " establishment of loan offices," by
the third section of which the officers of the treasury of the State,
under the direction of the Governor, were required to issue certificates
to the amount of two hundred thousand dollars, of denominations not
exceeding ten dollars, or less than fifty cents. These certificates were
made receivable at the State Treasury of Missouri for taxes, and by
all officers of the State, civil and military; certain property of the
State was pledged for their redemption; a provision was made for
gradually withdrawing them from circulation; and the Commissioners
of the loan offices were authorized to make loans of certificates, to
citizens of the State, bearing interest at the rate of six per cent, in
the manner prescribed by the act. The main question raised by this
law was, whether it was a bona fide loan, which it was admitted the
States have an unlimited power to make; or whether it was an emission of " bills of credit," a power which the States are prohibited from
exercising by the Constitution. The Supreme Court of Missouri had
decided that the law was valid; and now the State was summoned to appear and defend that law at the bar of the highest tribunal of the Union.
The veteran statesman, who for so many years occupied a seat in
the Senate of the United States, and has been recently transferred to
the more numerous branch of the National Legislature-Thomas H.
Benton-represented the State of Missouri in the Supreme Court,
not, as he took occasion to observe in his argument, as the advocate of
the State, for her acts did not require an advocate to vindicate them,
but as " a corps of observation," to watch what was going on. In
the commencement of his speech, Mr. Benton complained of the formal
language of the writ, which " summoned" the State to appear at the
bar of the Court. " In the language of the writ," he remarks, " she
is'commanded' and'enjoined' to appear. Language of this kind
does not seem proper, when addressed to a sovereign State; nor are
the terms fitting, even if the only purpose of their process was to obtain
the appearance of the State. They impute a fault in the State; they
* 4 Peters Reports, 410.




JOHN   MARSHALL.                      429
imply an omission, or neglect by the State. The language of'commanding and enjoining' would only be well employed if these had
occurred."
"The State of Missouri has done no act," he continued, "which was
not within the full and ample powers she possesses as a free, sovereign,
and independent State. She has passed a law which she considers in
the proper and beneficial exercise of her legislative functions; and
which had for its object'the promotion of the interests of her citizens."
The majority of the Court, however, thought otherwise. In their
opinion, pronounced by the Chief-Justice, the certificates of Missouri
were "bills of credit," within the meaning of the Constitution, and the
judgment of the Court again annihilated the legislative act of one of
the States of the Confederacy.  "In the argument," remarks the
Chief-Justice, "we have been reminded by one side of the dignity of
a sovereign State; of the humiliation of her submitting herself to
this tribunal; of the dangers which may result from inflicting a wound
on that dignity. By the other, of the still superior dignity of the
people of the United States, who have spoken their will in terms
which we cannot misunderstand.   To these admonitions we can only
answer, that if the exercise of that jurisdiction which has been imposed upon us by the Constitution and laws of the United States
shall be calculated to bring on those dangers which have been indicated, or if it shall be indispensable to the preservation of the Union,
and, consequently, to the independence and liberty of the States;
these are considerations which address themselves to those departments which may, with perfect propriety, be influenced by them. This
department can listen only to the mandates of law, and can tread only
that path which is marked out by duty."*
* The case was decided by a divided court. Three of the seven judgesJohnson, Thompson, and McLean-dissented. The precise question again arose
at the session of 1834, in the case of Byrne vs. the State of Missouri, 8 Peters, 40,
in which the decision of Craig vs. the State of Missouri, was reviewed and confirmed.
In the case of Briscoe vs. the Bank of the Commonwealth of Kentucky, 11
Peters, 257, one of the earliest constitutional cases decided after the appointment
of Chief-Justice Taney to the bench, it was held that the act incorporating the Bank
of Kentucky was a constitutional exercise of power by the State of Kentucky,
and the notes issued by the bank were not " bills of credit " within the meaning of




430               LIVES OF THE CHIEF-JUSTICES.
The session of the Court in 1831 was rendered memorable by the
argument and decision of the great Cherokee controversy,* one of the
most novel and interesting that had ever occupied the attention of the
Court, or, indeed, it may be said, of any tribunal in modern times.  It
would be impossible within the limits of this sketch to trace the origin,
progress, and ultimate issue of the controversy between the State of
Georgia and the Cherokee Indians, out of which this singular judicial
proceeding arose, and which fills an eventful page in the political history of that period. Nor is this necessary in order to accomplish the
sole object I have in view, which is, to state briefly the points at issue,
and the decision pronounced upon them by the Court.
From the commencement of the Government the Cherokee Indians,
residing within the territorial limits of Georgia, had been recognized
as a separate and independent people by the Federal authorities, and
a variety of treaties had been negotiated with them, the substance of
which it is not necessary to set forth.    The Cherokees had made
considerable advances in civilization, and had recently adopted a Conthe Constitution. In the prevailing opinion of the Court the case of Craig vs.
Missouri was cited, and declared to contain no principle conflicting with the decision in the Kentucky case. Mr. Justice Story dissented, holding, that the principle was the same as in Craig vs. Missouri, and that the notes of the Kentucky
Bank were " bills of credit" within the decision in that case. The cause, it seems,
had been once before argued, in Chief-Justice Marshall's time, and the majority
of the Court, including the late Chief-Justice, were of opinion that the act of
Kentucky, establishing the bank, was void. In his dissenting opinion on that
argument, Judge Story earnestly and warmly vindicated the opinions of ChiefJustice Marshall, and his own, on this subject. At the close of his elaborate
argument he observes:-" Mr. Chief-Justice Marshall is not here to speak for
himself; and knowing full well the grounds of his opinion, in which I concurred, that this act is unconstitutional, I have felt an earnest desire to vindicate
his memory from the imputation of rashness, or want of deep reflection. Had he
been living he would have spoken in the joint names of both of us."
The extent to which Judge Story carried his views on this subject is somewhat
remarkable. He intimates in his Commentaries on the Constitution, that independent of long continued practice from the time of the adoption of the Constitution,
the States would not, upon a sound construction of the Constitution, be authorized to incorporate banks with power to circulate bank paper as currency, in asmuch as they are expressly prohibited from coining money as well as emitting
bills of credit.
* The Cherokee Nation vs. State of Georgia. 5 Peters' Reports, 1.




JOHN MARSHALL.                     431
stitution and form of government. The State of Georgia desired the
extinguishment of the Indian title, and the removal of this people out
of their territory, which the General Government, in whom  the
authority to do this has been vested by the Constitution, had hitherto
neglected. Georgia, having waited in vain, as she alleged, nearly
thirty years, for the accomplishment of this object, now determined to
set about obtaining it in her own way, and accordingly passed a series
of acts extending the jurisdiction and municipal laws of the State over
the Indian territory, and declaring all laws, ordinances, and usages
heretofore adopted by the Cherokees to be null and void. Among
others was a law prohibiting any white man from residing among the
Indians without a special license from the Governor, and taking an
oath to support the Constitution and laws of the State. This was the
law under which the missionaries Worcester and others were convicted,
whose case I shall presently notice. A military guard was also estab.
lished, and every member of it authorized to arrest any person charged
with violating any portion of these laws; and provision was made for
a lottery by which the Indian lands were to be divided among the
people of the State.
The object of these laws was of course to force the removal of the
Indians from the State. The Cherokees complained to the General
Government, alleging that the laws were in violation of their treaties
made with the United States; they received the answer that there
was no help from that quarter, and that the Government would not
interfere. In this emergency they took the advice of counsel, and
eagerly embraced the last hope that remained, by bringing their case
before the Supreme Court of the United States. It was thought that
the clause of the Constitution which gives that tribunal jurisdiction in
controversies " between a State, or citizens thereof, and foreign States,
citizens, or subjects," would authorize the Cherokees to sue as aforeign
State, and, accordingly, a bill was filed in the Supreme Court, in the
name of the Cherokee nation, against the State of Georgia, praying for
an injunction to restrain the State from the execution of these laws,
on the ground of their being null and void as against the treaties of
the United States. This motion was brought on at the present term,
and was argued on behalf of the Cherokees by William Wirt (witl
whom the late Mr. John Sergeant was associated), with more than




432               LIVES OF THE CHIEF-JUSTICES.
his usual earnest and lofty eloquence. Wirt had prepared the case
with extraordinary care and fullness; and he entered upon its discussion with intense ardor and enthusiasm. Indeed, discriminating and
judicious critics have declared this to be one of the ablest and most
admirable speeches ever delivered by that accomplished orator and
lawyer.  The spectacle was certainly grand and imposing, and the
scene such as must have animated and inspired, not the speaker only,
but the entire audience that thronged the court-room.    " The great
interest excited by the controversy," says a writer in the North American Review, "was naturally to be expected from the novelty of the
case, the dignity of the parties, and the high importance of the principles in question. The scene wore in some degree the imposing
majesty of those ancient debates, in which the great father of Roman
eloquence sustained before the Senate the rights of allied and dependent, but still sovereign princes, who had found themselves compelled
to seek for protection and redress from the justice of the mighty Republic.  We may add        that the high and well-earned reputation of the
counsel retained by the Indians, added another point of resemblance
to the parallel."'*  The parallel was just both in respect to the cause,
the tribunal, and the advocate. If, at that moment, the Supreme
* It must have been at the delivery of.the judgment in such a case that Miss
Martineau intends her graceful description of a scene in the Supreme Court to
apply. " I have watched the assemblage when the Chief-Justice was delivering a
judgment," she says; " the three judges on either hand gazing at him more like
learners than associates; Webster standing firm as a rock, his large, deep set eyes
wide awake, his lips compressed, and his whole countenance in that intent stillness, which easily fixes the eye of the stranger. Clay leaning against the desk in
an attitude whose grace contrasts strangely with the slovenly make of his dress, his
snuff-box for the moment unopened in his hand, his small, grey eye, and placid halfsmile, conveying an expression of pleasure, which redeems his face from its usual
unaccountable commonness. The Attorney-General, his fingers playing among
his papers, his quick, black eye, and thin, tremulous lips for once fixed, his small face,
pale with thought, contrasting remarkably with the other two. These men, absorbed
in what they are listening to, thinking neither of themselves nor of each other,
while they are watched by the groups of idlers and listeners around them; the
newspaper corps, the dark Cherokee chiefs, the stragglers from the far West, the
gay ladies in their waving plumes, and the members of either House that have
stepped in to listen; all these I have seen constitute one silent assemblage, while
the mild voice of the aged Chief-Justice sounded through the Court."-Retrospect
of WVestern Travel. Vol. I. p. 165.




JOHN MARSHALL.                     433
Court displayed the imposing and majestic dignity of a Roman Senate,
who will deny that its Tully was William Wirt?
The State of Georgia refused to respond, or appear, on the argument. It was currently reported, both at the Capitol and throughout
the country, that Georgia would refuse to abide by, or respect, an
adverse decision. This report was fully countenanced by the action
of the State, which certainly conveyed a significant hint as to. her
probable course. A Cherokee Indian had been arrested, tried, coInvicted, and sentenced to be hung, under the authority of the State,
for the murder of another Indian. A writ of error was granted to
the Supreme Court of the United States on this same question of the
validity of the Georgia laws; but the State authorities, without
noticing the pendency of the proceedings, caused the sentence to be
executed before the appeal could be brought to argument. The difficulty as to how the injunction was to be enforced in case it should be
awarded, and the State should refuse to obey, was certainly a formidable one; but Wirt's answer to the objection was both obvious and
logical " It will be time enough," he says, " to meet that question
when it shall arise. At present the question is, whether the Court,
by its constitution, possesses the jurisdiction to which we appeal:
and it is beginning at the wrong end of the inquiry to ask how the
jurisdiction, if possessed, is to be enforced."
But this question was never reached by the Court. The motion for
the injunction was denied. The opinion of the majority of the judges,*
pronounced by the Chief-Justice, though brief, was very carefully prepared, and disposed of the whole case on the question of jurisdiction.
The Constitution had conferred upon the Court jurisdiction to determine controversies "between a State, or the citizens thereof, and
foreign States, citizens, or subjects."  The State of Georgia might unquestionably be sued, but was the Cherokee nation aforeign State within
the meaning of the Constitution, so as to open to it the doors of the
Federal tribunals? This question he decides in the negative. Assenting to that part of the argument of counsel that the Cherokees were
a State, as a distinct political society, separated from others, capable
of managing its own affairs and governing itself, he regards the peeu* Justices Thompson and Story dissented; the former of whom wrote an able
dissenting opinion.
28




434             LIVES OF THE CHIEF-JUSTICES.
liar relations of the Indians with the United States, and their dependence upon our government, as entirely precluding the idea that they
are to be regarded as a foreign State within the purview of the Constitution. The Court, therefore, had no jurisdiction, and the injunction was denied, without entering into a consideration of the merits of
the case, or an examination of the validity of the Georgia laws.*
At the next session, a new, and still more interesting phase of the
Cherokee controversy was presented. It came before the Court in a
different form, and brought up for discussion and decision the whole
question as to the validity of the Georgia laws.t  The case is doubtless yet fresh in the memory of those whose recollections extend back
to that time, and such will remember, too, the interest and excitement which the discussion created   throughout the country.   I
have mentioned the law of Georgia which prohibited, under severe
penalties, any white person from residing among the Indians without
special permission from the Governor of Georgia, and taking an oath
to obey the Constitution and laws of the State. At the time of the
passage of the act, Samuel A. Worcester, a citizen of Vermont, was a
resident among the Cherokees as a missionary, sent by the American
Board of Foreign Missions, and with the license and permission of
the President of the United States. He had no license, however,
from the Governor of Georgia, and had refused to take the oath
required by the act, deeming it incompatible with the duties of his
mission. Elizur Butler, and five others, stood in the same category.
These gentlemen were indicted in September, 1831, in Gwinnett
County, Georgia, convicted, and each sentenced to four years imprisonment at hard labor in the penitentiary. The Governor immediately tendered them a pardon on condition of their conforming in
future with the policy of the State. Five of them accepted he pardon, but Worcester and Butler refused, and their cases were brought
to the United States Supreme Court on a writ of error. Mr. Wirt
and Mr. Sergeant were retained by the Board of Missions, and argued
the cause for the missionaries; the State of Georgia did not appear.
* Mr. Wirt, it is said, had great doubts upon the subject of jurisdiction. Some
of the most eminent jurists of the country, however, had given their views in
favor of it. and among them Chancellor Kent, whose opinion was read on the
argument
t Worcester vs. The State of Georgia, 6 Peters' Reports, 515.




JOHN MARSHALL.                      435
A preliminary objection as to the form of the record having been
disposed of, and the question of jurisdiction settled in favor of the
missionaries, the Court proceeded to inquire into the main question
presented by the case, namely, whether the law of Georgia was consistent with, or repugnant to, the Constitution, laws, and treaties of
the United States. The Chief-Justice, as was usually the case in the
determination of grave questions of constitutional law, pronounced
the prevailing opinion of the Court. It is evident that he approached
the task deeply impressed with the delicacy as well as the responsibility of the position. But he did not hesitate or shrink from a full
discharge of his duties. " The cause in every point of view in which
it can be placed," he remarked, " is of the deepest interest.  The
defendant is a State,, a member of the Union, which has exercised the
powers of government over a people who deny its jurisdiction, and are
under the protection of the United States. The plaintiff is a citizen
of the State of Vermont, condemned to hard labor for four years in
the penitentiary of Georgia, under color of an act which he alleges to
be repugnant to the Constitution, laws, and treaties of the United
States. The legislative power of a State, the controling power of the
Constitution and laws of the United States, the rights, if they have
any, the political existence of a once numerous and powerful people,
the personal liberty of a citizen, are all involved in the subject now to
be considered. It behoves this Court in every case, more especially in
this, to examine into its jurisdiction with scrutinizing eyes, before it
proceeds to the exercise of a power which is controverted."  Having
examined this question, and placed the jurisdiction of the Court upon
the clearest basis of both principle and authority, the Chief-Justice
next considers the main question presented by the case as to the
validity of the Georgia laws under which the missionaries were convicted; and by a train of that simple but masterly and unanswerable
reasoning which characterizes all his juridical arguments, arrives at the
conclusion that these laws are repugnant to the Constitution, laws,
and treaties of the Union. Without following, or attempting to
analyze, this argument, I shall merely state his conclusions in his own
language: "The Cherokee nation, then, is a distinct community,
occupying its own territory, with boundaries accurately described, in
which the laws of Georgia can have no force, and which the citizens




436             LIVES OF THE CHIEF-JUSTICES.
of Georgia have no right to enter but with the assent of tie Cherokees
themselves, or in conformity with treaties, and with the acts of Congress. The whole intercourse between the United States and this
nation,* is, by our Constitution and laws, vested in the United States.
The act of the State of Georgia under which the plaintiff in error was
prosecuted, is consequently void, and the judgment a nullity".
In regard to the power of the Court to reverse the judgment, and
the right of the plaintiff in error to this remedy, he remarks: "He
was seized, and forcibly carried away, while under guardianship of
treaties guarantying the country in which he resided, and taking it
under the protection of the United States. He was seized while performing, under the sanction of the chief-magistrate of the Union, those
duties which the humane policy adopted by Congress had recommended. He was apprehended, tried, and condemned under color of
a law which has been shown to be repugnant to the Constitution,
laws, and treaties of the United States. Had a judgment, liable to
the same objections, been rendered for property, none would question
the jurisdiction of this Court. It cannot be less clear wien the judgment affects personal liberty, and inflicts disgraceful punishment, if
punishment could disgrace when inflicted on innocence. The plaintiff
in error is not less interested in the operation of this unconstitutional
law, than if it affected his property. He is not less entitled to the
protection of the Constitution, laws, and treaties of his country."
The judgment was annulled, Mr. Justice Baldwin alone dissenting;
but the formidable question, started by Mr. Wirt in the previous argument, now arose, not indeed in the Court, but in the public mind, how
was the decision to be enforced? The State of Georgcia treated it as
a nullity; the missionaries were still retained in the penitentiary, the
Governor declaring, as is said, that he would rather hang them than
liberate them under the mandate of the Supreme Court. The General
Government gave but little hopes of interfering in the controversy,
and no farther judicial proceedings were instituted.  Nothing was left
for the prisoners but to wait for a day of cooler judgment and more
moderate counsels. After some eighteen moaths this day arrived
* In the previous opinion, it will be recollected, the Chief-Justice laid down
the same principle-that the Cherokees were a separate State or nation; thlo;g:JL
he held they were not aforeign State within the meaning of the Constitutoia.




JOHN MARSHALL.                      437
The contest had grown hopeless to the weaker party. The missionaries were released; and here ended this extraordinary chapter in the
history of our free government.*
At the session of the Court in 1833, the case of Barron vs. The
Mayor and City Council of Baltimore   was argued, in which ChiefJustice Marshall delivered  one of his last constitutional judgments.t The question raised was, whether the provision of the
Constitution which inhibits the taing of private property for public
use without just compensation, ought to be construed so as to restrain
the legislative power of a State, as well as that of the United States;
a question of great importance indeed, but, as the Chief-Justice observed in his opinion, of no very great difficulty. He answers this
question without hesitation, and with the unanimous concurrence of
his associates, in the negative.  "The States, in their several Constitutions," he remarks, "have imposed such restrictions on their respective governments as their own wisdom suggested; such as they
deemed most proper for themselves. It is a subject on which they
judge exclusively, and with which others interfere no farther than they
are supposed to have a common interest. The constitutional provision under consideration, was not intended to secure the people of
the several States against the undue exercise of power by their respective State governments, but only against that which might be attempted by the Federal Government; and the Court was, therefore,
of the opinion that the clause of the Constitution which declares that
private property shall not be taken for public use without just compensation, is intended solely as a limitation on the exercise of power
by the Government of the United States, and is not applicable to the
legislation of the States."
The present Chief-Justice of the United States was one of the
counsel engaged on the argument in support of the State law —an act
of the legislature of Maryland-the validity of which was established
by this decision.
* Kennedy's Life of Wirt. Vol. II. p. 323.
t 7 Peter's Reports, 243.
t He wrote the brief opinion in Byrne vs. The State of Missouri, referred to in
a preceding note (page 429), at the next session of the Court; but that case
merely re-affirmed the decision in Craig vs. Missouri, turning on the same constitational point.




438             LIVES OF THE CHIEF-JUSTICES.
It may very justly be inferred from this decision, what indeed was
indicated in the case of The Providence Bank vs. Billings, heretofore
noticed,* and some others which might be mentioned, that, however
strictly the Chief-Justice was disposed to limit the power of State
legislation when that power came in collision with some law of,
or authority claimed to be exercised by, the Federal Government;
yet, in other cases he was inclined to restrict, rather than to extend,
the jurisdiction of the Court, and never assumed to invade the province of State legislation in those matters which, appropriately pertaining to State sovereignty, involve no collision of jurisdiction or
power.
Thus we have seen that he regarded the power of taxation to be an
inherent attribute of sovereignty, and sacred in all cases except when it
came in collision with, or might be exercised to the destruction of, a
rightful power of the General Government, in which case it was void.t
So, too, he held, that even the legislative act of a State which divested
antecedent vested rights of property, provided always that it did not
impair the obligation of contracts, could not be pronounced void by
the Supreme Court as against the Constitution of the United States.
He had intimated, indeed, in Fletcher vs. Peck,t that it might well
be doubted whether the nature of society and of government does not
prescribe some limit to the legislative power; but he nowhere intimates that the Constitution prohibits the States from passing laws
derogatory to private rights of property, a power which certainly may
be regarded as the highest attribute of sovereignty. This power was
asserted to exist in an opinion delivered by one of his brethren, in
which the Chief-Justice appears to have concurred.~  The point was
again raised in Watson vs. Mercer, at the session of 1834, the very
last constitutional argument ever made before him. t  In this case
Judge Story, pronouncing the unanimous opinion of the Court, of
course including the Chief-Justice, reiterates the doctrine in these
broad and general terms: "That the Court has no right to pro* On page 426.
t Brown vs. State of Maryland, Weston vs. City of Charleston, Providence
Bank vs. Billings.
+ a.nte, page 359.
~ Satterlee vs. Matthewson, 2 Peters' Reports, 413.
11 8 Peters' Reports, 88.




JOHN MARSHALL.                      439
nounce an act of the legislature of a State void, as contrary to the
Constitution of the United States, from the mere fact that it divests
antecedent vested rights of property; the Constitution does not prohibit the States from passing retrospective laws generally, but only ex
post facto laws, and these laws are held to embrace not civil rights,
but penal and criminal proceedings and matters only."*
Marshall never fell into the error of his predecessors, that the Federal Courts have a common-law jurisdiction. So, too, he never questioned the exclusive jurisdiction of the State tribunals to interpret
their own State statutes, a principle fully established by repeated
decisions of the Court. In one case t before him, however, it was
contended that the exclusive power of the State Courts to construe
their own legislative acts, does not extend to the paramount law, so
as to enable them to give efficacy to an act contrary to the State
Constitution. Marshall thus deals with the objection, and vindicates
the right and authority of the State tribunals over constitutional questions: " We cannot admit this distinction. The judicial department
of every government is the rightful expositor of its laws; and, emphatically, of its supreme law. If, in a case depending before any
court, a legislative act shall conflict with the Constitution, it is admitted that the Court must exercise its judgment on both, and that
the Constitution must control the act. The Court must determine
whether a repugnancy does or does not exist, and in making its determination must construe both instruments. That its construction of
one is authority, while its construction of the other is to be disregarded, is a proposition for which the Court can perceive no reason."
I have thus brought to a close this brief review of the judicial life
of Chief-Justice Marshall-a review necessarily imperfect, and which
I am satisfied cannot give an adequate idea of the extent, the variety,
the comprehensiveness, the greatness of his labors. I have not touched upon his decisions at the Circuit, nor have I undertaken, by citing
even here and there an isolated case, to indicate the extent of his
* Mr. Justice Johnson, in his dissenting opinion in Satterlee vs. Matthewson,
considers this doctrine relative to the nature of ex post facto laws to be unsound
and pernicious.
t Bank of Hamilton vs. Dudley's lessees. 2 Peters' Reports, 492.




440             LIVES OF THE CHIEF-JUSTICES.
learning and the value of his labors, in the various branches of commercial and maratime, as well as international law, the law of copyrights, the law of patents, and those other subjects which are peculiarly within the cognizance of the Federal tribunals. These, and a
variety of other interesting matters, connected with his judicial
services, are necessarily excluded by the limits marked out for this
sketch-a sketch which in no sense pretends to the completeness of a
full biography. That biography will, doubtless, be written, and the
picture filled up by another and more competent hand;-by one
having access to his private papers and voluminous correspondence;and, if done soon, by one perhaps who knew him intimately, and who,
from personal knowledge and intercourse, can draw the picture to the
life, in the lights and shades of his private as well as his public character-introducing us to his fire-side, his table, his familiar conversation, and every-day life, and illustrating, by personal anecdote and
reminiscence, his habits, his peculiar tastes, his mode of life, and even
his little infirmities, if any such he may have had. While this, however, has not been attempted, I have yet endeavored to disclose fully
and accurately his judicial opinions, upon most of those great questions of constitutional law which, in his capacity of judge, he was
called upon to review. In like manner I shall here notice some other
views entertained by the Chief-Justice relative to our political and
judicial systems, which, though not judicially expressed, he did not
hesitate to avow without reserve or concealment.
It is well known that Marshall's opinions upon political questions, as
well as upon Constitutional law, were formed in the Federal school, and
continued without change and unshaken to the day of his death.  A
writer in the New York Review, who seems to participate in these
views with no little ardor of feeling, declares, that he " abhorred ab
imo pectore all the modern, new fangled doctrines, so fashionable in
Virginia, upon the subject of the Constitution and the principles of
the government;"-that is to say, the doctrines contained in and legitimately resulting from the famous resolutions of 1998.  Making
due allowance for the warmth of this language, the expression, I apprehend, is not far wide of the mark.  But, as it has been very properly said, the admiration which one feels for the intellectual powers
displayed by the Chief-Justice, in his expositions of the Constitution,




JOHN MARSHALL.                      441
is not to be confounded with assent, in all cases, to the results to
which he came. Many distinguished men have differed, and still differ
from him, in his views of Constitutional law, and even his learned associates upon the bench have not uniformily gone along with him.
Thus the resolutions of 1798, it is scarcely necessary to remind the
reader, were the work of Madison; and so far as a mere name may
be cited as authority, and aside from the weight to be attached to the
judicial character, in questions of constitutional construction, Madison
may claim to stand at least on an equality with Marshal; for he was
with the Constitution at its birth, he was its cotemporary expositor,
and not only a large portion of its materials, but some of its essential
framework, are the contributions of his own hands. It would be no
presumption, therefore, were this the proper place to enter upon the
discussion, to question, on original principles, the accuracy and soundness
of some of the constitutional constructions of the illustrious Judge, so far,
at least, as they may be found to differ from those of him, who may, by
way of pre-eminence, be called the author of the Constitution.  Had
James Madison come to the bench in 1801, instead of John Marshall,
though the whole current of decisions in questions involving the sovereignty of the states might have been changed, can it, for a moment,
be imagined, that such change would have impaired the stability of
our institutions, or the liberties of the country?
It is to be observed, however, that the difference between these two
truly great and illustrious minds in regard to the rules of constitutional construction, except perhaps in cases directly involving questions
of power between the Federal and State sovereignties, is really less
than has been generally supposed. While it must be admitted that
Marshall was not a state's rights man (as the term is usually understood), yet his decisions, in a class of cases already referred to, show
that he was, in one sense, like Madison, a strict constructionist; that
no man was less likely than he to infer a power in the general government, authorizing an invasion of the rights, and a control of the sovereignty of the State tribunals and legislatures; and that he by no
means shared those loose and indefinite notions which pervaded the
Court, and were entertained by prominent Federal statesmen and
jurists, in Jay's and Ellsworth's time.
In his political sentiments Marshall was warm and decided; for,




442             LIVES OF THE CHIEF-JUSTICES.
though entirely withdrawn from political life, it is certainly true that
he did entertain not only decided, but warm political feelings.* That
these feelings may have influenced his judgment in giving construction
to great questions of constitutional power is not only probable, but
perhaps natural, and unavoidable. Of what avail could argument be
to unsettle a principle which had occupied his closest attention, and
had been rooted in his mind for years as a fundamental political truth,
sustained, as he viewed it, by the letter as well as by the spirit of the
Constitution. The argument of such a point must have been to him
but another of those dull experiences upon the bench of which Judge
Story gives an anecdote in illustration: " That point has been repeatedly decided the other way," remarked the Judge to an advocate
who was advancing some new propositions at the end of a long and
prosy discourse. "Nevertheless," answered the counsel, "I consider
that my duty to my client requires me to argue it."  "Very well,"
replied Story, "you can go on and argue it, if you think your duty
requires it.  I would not restrict you in the performance of your
duty; but I made up my mind on the point and decided it twenty
years ago, and have never seen any reason to change it."
While in Congress Marshall voted, as has been elsewhere remarked,
for the repeal of the second section of the sedition act, in opposition
to his political friends. It is confidently asserted, however, from his
own subsequent declarations, that he did not place his vote upon the
grounds of any doubt as to the constitutionality of the act, but merely
because he deemed the law inexpedient and unsuited to the temper
and feelings of the American people.t
He freely expressed to his friends in private conversation his views
in regard to the power of Cdngress to construct roads, and upon the
subject of internal improvements generally, recognizing fully the power
so far as it was the appropriate means of carrying out the express
power given to Congress; as to construct military roads under the
* In a lively letter to Judge Carr, Mr. Wirt, who always entertained for the ChiefJustice the most profound respect, remarks: " I do not believe he has an atom of
gall in his whole composition on any other subject than that of politics; or that
with him-as with many other great men in the Union, who will never forgive
the fall that Mr. Jefferson gave them-hceret lateri lethalis arundo."-2 Kennedy's Life of Wirt, 208.
t 3 New York Review, 347.




JOHN MARSHALL.                      443
power to declare war; to appropriate money for improvements of a
national character under the power to regulate commerce between the
States, &c., &c.*
He regarded the treaty-making power as extending to cases of
cession of territory; he would not undertake, says Judge Story, to
say that it extended to all cases, yet he did not doubt it must be construed to extend to some.t
Passing by these debateable political questions, it would be curious
to notice some of his views, not judicially expressed, upon subjects of
interest connected with the constitutional jurisprudence of the country,
which, controverted in his day, have since been adopted as the settled
opinion of the Court. I shall notice but one or two of these.
Under the Constitution the judicial power extends to controversies
"between citizens of different States."  It had been decided at a very
early period by one or two cases in which the Chief-Justice himself
pronounced the judgment of the Court, that a corporation aggregate
was not "a citizen" within the meaning of the Constitution, and
could not sue in the Courts of the United States as such.t This
opinion, which was adhered to by the Court so late as the session of
1840,~ we are told by Judge Story, was considered by the ChiefJustice, before his death, as incorrect, and as having been given on
inadequate grounds.l  It has been subsequently revised by the Supreme Court, and a different rule adopted.T
Another opinion of Chief-Justice Marshall, which has been considered and adopted by the Supreme Court since his time as correct
in principle in opposition to previous decisions, was in relation to the
jurisdiction of our Courts of Admiralty. Following the course of the
English decisions, the Supreme Court had uniformly held, as the rule
was laid down by Mr. Justice Story in the case of the Thomas Jefferson,** that the Admiralty had no jurisdiction except upon the sea, or
* 3 New York Review, 347.
t Letter of Judge Story to Edward Everett.-2 Story's Life and Letters, 288.
t Strawbridge vs. Curtis. 3 Cranah Rep. 267. Bank of the United States vs.
Devereaux. 5 Cranch Rep. 61.
~ Bank of Vicksburgh vs. Slocum. 14 Peters' Rep. 60.
1j Letter to Chancellor Kent. 2 Story's Life and Letters, 469.
~ Louisville Rail Road Co. vs. Letson. 2 Howard's Rep. 497.
** 10 Wheaton's Reports, 428. See also Steamboat Orleans vs. Phoebus. 11
Peters' Reports, 175.




444              LIVES OF THE CHIEF-JUSTICES.
upon tide waters within the ebb and flow of the tide. This principle,
the Chief-Justice believed, had been misapplied, and was too narrow
in its interpretation to be applicable to the great rivers of America,
though perfectly correct and reasonable in regard  o o the jurisdiction
in England, where the rivers are short, and none of them navigable
from the sea beyond the ebb and flow of the tide. He spoke of this,
it is said, as one of the most deliberate opinions of his life,* having no
doubt, on a correct application of the principle, that the Admiralty
jurisdiction extended over the Mississippi and its branches as far as
navigable from the sea, hundreds of miles into the interior; and also,
though he spoke of this with less confidence, over the great inland
lakes, which were to be deemed inland navigable seas.  Nor did he
doubt the constitutional power of Congress to regulate this subject,
and confer this jurisdiction, as being within the power to regulate commerce between the States.    These deliberate and well considered
opinions of the Chief-Justice, though not recognized in his day, have
been established in ours, in a recent judgment of the Court, pronounced
by the present Chief-Justice,t holding the Act of Congress of 1845,
which extends the Admiralty jurisdiction over the lakes and navigable waters connected with the same, to be constitutional.  In the
judgment of the Court, the act rests, not upon the power of Congress
to regulate commerce, but upon the broad and original principle maintained by Marshall, that the Admiralty jurisdiction granted to the
Federal government by the Constitution is not limited to tide waters,
but extends to all public navigable lakes and rivers, where commerce
is carried on with different States or with a foreign nation.S
The literary labors of Chief-Justice Marshall, and his connection
with the Virginia Convention in 1829, are the only incidents of his
active life that yet remain to be noted.
* 3 New York Review, 350.
t Genesee Chief vs. Fitzhugh.  12 Howard's Reports, 443. See subsequent
Sketch of Chief-Justice Taney.
$ Mr. Justice Daniel, who dissented, must have been mistaken in regard to the
views of Marshall on this subject, when, in denying any such extensive ground of
Admiralty jurisdiction in this country, or the right of Congress, under the strict
provisions of the Constitution, to confer it on the Courts, he claims, if there is any
error in the view he adopts, that he is sustained in the view by "the support of
Marshall, Kent, and Story." See dissenting opinion of Mr. Justice Daniel.




JOHN MARSHALL.                     445
The private and original papers and correspondence of General
Washington, came by his will into the hands of his nephew, Judge
Bushrod Washington. Between this gentleman and Marshall, the
most intimate friendship existed. Judge Washington, immediately on
the death of his uncle, selected the Chief-Justice to write his biography. That work was prepared by Marshall as a religious duty, with
all that profound admiration for tre character, and reverential affection for the memory, of the man, which he never ceased to entertain,
and yet with that severe and almost stern impartiality, and that unsparing critical judgment which concede nothing to friendship, and
doubt even the genuineness of those memories which arise unbidden
from the warm affections of the heart. The examination of, and selections from, the mass of manuscripts and papers that were placed in his
hands was a herculean task; but the Chief-Justice performed it with
scrupulous care and fidelity. The first three volumes of the Life of
Washington were published in 1804, the fourth in 1805, and the fifth
and last in 1807. These volumes undoubtedly contain the fullest, the
most impartial, and the most authentic statement ever written of
Washington's military life, and indeed of the entire war.
The author himself was in the army, and was under the immediate
command of Washington during the most critical and the most interesting period of his military career; and it has with truth been said
of Marshall that no other man could have brought to this task so
many and such various qualifications for its successful accomplishment.
The part devoted to the political history of the times, particularly
during the administration of Washington, is also written with singular
candor and truthfulness. Of the events he narrates he could speak as
matters of cotemporary history. He could speak of them as LEneas
might have spoken of Ilium, when, his eye resting upon the pictured
representation, in the palace of Carthage, memory brought back to
him, in all the vivid distinctness of reality, those scenes of but yesterday. Like the Trojan chief, Marshall had borne his share in the
events, and mingled with the men, of the period he describes, and
could speak of both with the precision and confidence of personal
knowledge. And it is certainly no small praise to say, that entertaining decided and warm party predilections, he has spoken both of




446                LIVES OF THE CHIEF-JUSTICES.
men and measures with a moderation, a fairness, and an impartiality,
that has left nothing even for political opponents to criticise.*
The merits of the Life of Washington, as an accurate and impartial
work of history, are universally conceded. The style might perhaps
suggest criticism. It is simple, plain, and unambitious, and perhaps,
as is remarked of his judicial opinions, a little " hard and dry."  Marshall wrote to communicate facts, to instruct, to convince, not to delight or amuse with the graces of rhetoric.   One cannot help thinking,
however, that a little more liveliness and warmth of narrative, a little
fuller scope of illustration, and a freer play of the fancy, always however within the rigid and strictly circumscribed bounds of historic
truth, would have rendered the life of Washington a more readable
and popular biography.
The first of these volumes, it should be mentioned, contained a brief
* A note relative to Mr. Jefferson's famous letter to Mazzei, called forth a commentary which forms an unfortunate exception to the above remark. Mr. Jefferson alleges that a paragraph had been interpolated in his Mazzei letter which
makes him charge his own country with ingratitude and injustice to France. In
a letter written by Jefferson only the year before his death, to Mr. Van Buren, he
comments with some severity upon Marshall's reference to this letter, remarking,
"And even Judge Marshall makes history descend from its dignity, and the
ermine from its sanctity, to exaggerate, to record, and to sanction this forgery."
Marshall, in his second edition of the Life of Washington, in 1832, in the note to
the Mazzei letter, replies to these comments not without some degree of warmth
and asperity.
It is well known that the same reciprocal esteem and good understanding
which existed between Madison and Marshall never existed between the latter and
Jefferson. It is to be accounted for perhaps not altogether from political differences, but also from that clashing of opinion which arose between the Executive
and the Supreme Court during Jefferson's administration. The extra judicial
opinion, as Jefferson called it, in Marbury vs. Madison, was extremely distasteful
to the President, and so in a much greater degree, were the rulings and decisions
of Marshall in Burr's trial. This is very evident from Jefferson's letters during
the trial to MIr. Hay, which are found ip his published correspondence. The enemies of Mr. Jefferson have fastened upon him with fierce and almost vindictive
animosity, the charge of having attacked the Chief-Justice from feelings of personal as well as political hostility. I do not intend to discuss the merits of the
controversy on either side, but merely remark, that so far as the published correspondence of Mr. Jefferson can be taken as a guide, I believe this charge to be
greatly exaggerated if not entirely destitute of foundation.




JOHN MARSHALL.                      447
history of the American colonies up to the period of the Revolution.
This historical review, after being very fully and carefully revised by
the author, was detached from the original work, and republished in
1824 as a "History of the Colonies." Ia 1832 he republished the Life
of Washington, in two closely printed volumes, carefully revised and
condensed-the language being, as he remarks in his preface, "in
some instances altered-he trusts, improved; and the narrative, especially that part of it which details the distresses of the army during
the war, relieved from tedious repetition of the same suffering."
Chief-Justice Marshall, at the age of seventy-four years, was elected
a member of the Convention which assembled early in 18.29, to revise
the Constitution of his native State. It has been well remarked, that
a spectacle of greater dignity than this Convention, has rarely been
exhibited. It was composed of the most eminent citizens of Virginia
-some of them indeed the most eminent and illustrious of living
American statesmen-the record of whose public services reached back
to a period before the foundation of the government, and whose histories were interwoven with the history of the republic. Such were the
two venerable ex-Presidents of the United States, James Madison and
James Monroe. These, with Marshall, might well be called the Nestors
of the Convention; for each of them, like the Pylian sage, amid the
Grecian chiefs before the walls of Troy, had survived two generations
of men, and was standing now among a third, to enlighten and instruct
by the wisdom of years and experience. Among their associates were
the late President Tyler, the late Associate-Justice of the Supreme
Court, Philip P. Barbour, Henry B. Giles, Littleton W. Tazewell, Abel
P. Upshur, besides many other gentlemen, who have subsequently distinguished themselves and earned an honorable fame in the service of
their State and country.
It had been intended to call Mr. Madison to preside over the Convention, but his advanced age and physical infirmities induced him to
decline. Mr. Monroe was then unanimously selected, and was conducted to the chair by Madison and Marshall. I cannot undertake
here to follow the course of the proceedings of the Convention, or to
allude even to the prominent subjects of its discussions. The debates
were at times very animated, and always exceedingly able. A full
report of them has been published, comprising a volume of nine hun



448             LIVES OF THE CHIEF-JUSTICES.
dred closely printed pages. The Chief-Justice, though not a frequent,
much less a tedious, speaker, occasionally mingled in these debates,
and spoke with a directness and an earnest sincerity which commanded
the respect, if it did not carry conviction to the understandings of his
hearers. It is said that one of the most beautiful features of the scene
was the reverence manifested for Chief-Justice Marshall. The gentleness of his temper, the purity of his motives, the sincerity of his convictions, and his wisdom, were confessed by all.*  Though members
might differ from him in judgment, no harshness or asperity of language was suffered to mingle with the reply which his arguments
elicited. He spoke upon the two great questions which divided the
Convention, namely, the basis of representation, and the tenure of the
judicial office, and with especial earnestness and feeling upon the
latter. In this debate the judicial act passed by Congress in 1802,
restoring the former circuit system, and thereby abolishing the
offices of certain judges, was touched upon. The views expressed
by the Chief-Justice on this subject were not concurred in by some of
the prominent gentlemen in the Convention. His remarks were replied
to by Mr. Tazewell and Mr. Giles, but by both with the utmost courtesy and respect, especially the latter, who, forgetting past differences
of opinion, expressed the highest personal regard for his venerable
associate.
The projected Constitution contained a provision that Judges of the
Superior Courts should hold their offices during good behavior. The
Chief-Justice proposed to add a clause guarding against such a construction as that of the act of Congress referred to, which by repealing the law establishing the Court, dissolved the tenure of the Judge's
office, and discharged him upon the world. In the view of Marshall,
this was incompatible with the absolute independence of the Judiciary. He spoke upon this question with earnestness and emphasis
-almost, says one, with the authority of an apostle. "The argument of the gentleman," he said, " goes to prove not only that there
is no such thing as judicial independence, but that there ought to be
no such thing;-that it is unwise and improvident to make the tenure
of the Judge's office to continue during good behavior. I have grown
old in the opinion, that there is nothing more dear to Virginia, or
* Mr. Binney's Eulogy.




JOHN MARSHALL.                     449
ought to be more dear to her statesmen, and that the best interests of
our country are secured by it. Advert, sir, to the duties of a Judge.
HEe has to pass between the government, and the man whom that
government is prosecuting,-between the most powerful individual in
the community, and the poorest and most unpopular. It is of the last
importance that, in the performance of these duties, he should observe
the utmost fairness. Need I press the necessity of this? Does not
every man feel that his own personal security, and the security of his
property depend upon that fairness? 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 a sinning people, was an ignorant, a corrupt, or a dependent
Judiciary."
An incident occurred in one of the discussions in the Convention,
that is worthy of being noticed. Among the provisions of the proposed Constitution relative to the legislature, was one restraining the
Senate from altering a money bill originating in the other house. The
Chief-Justice moved to strike out the clause, and proceeded to express
his views upon the subject, remarking, among other things, that the
idea was derived from England, where the upper house were hereditary legislators; and however well adapted to their institutions and
frame of government, it was not suitable to ours. During his remarks
much disorder and confusion prevailed in the house, and his voice was
scarcely audible above the tumult. A member sprang to his feet, and
addressing the chair, exclaimed: "Wisdom crieth aloud in the street,
and her voice is not heard!" The chairman at once called the house
to order, and comparative quiet was immediately restored. Marshall
continued and concluded his remarks. The question was then taken
on the amendment, and carried by a very large majority.
The venerable Chief-Justice presided, for the last time, in the Supreme Court, at the session of 1835. He had now entered upon his
eightieth year, and was still in the enjoyment of tolerable health, and
29




450            LIVES OF THE CHIEF-JUSTICES.
in the full possession of his mental faculties. There were some cases
pending at this term, involving important questions of constitutional.
law, and among others that of Briscoe vs. The Commonwealth Bank
of Kentucky, and Miln vs. The City of New York. The Court, however, was not full; for though Mr. Justice Wayne had taken his seat
early in the term, in place of Judge Johnson, deceased, yet another
vacancy had been created by the resignation of Mr. Justice Duval.
In reply to the inquiry of counsel, whether cases involving constitutional questions would be taken up the present term, the Chief-Justice
said: "The Court cannot know whether there will be a full Court
during the term; but as it is now composed, the Constitutional cases
will not be taken up."
The cases accordingly passed over; they passed into the hands of
his successor on the bench. For Marshall there was never again "a
full court;" he had heard his last argument, and pronounced his last Constitutional judgment. His work was done; the opening of the next session brought with it the eulogy for the departed, in the eloquent words
of Clay; and the affectionate and affecting response of Story, who, as
senior Judge, occupied the seat of the deceased: "This hall will never
again be honored by his presence. But so long as it shall remain devoted to the administration of public justice, so long will it preserve
the best records of his fame. He who in future ages shall here seek
for his monument, need but look around him and before him. The
voices of the eloquent and the learned, which will here pronounce his
name, will never fail to breathe forth, at the same time, his most affecting praise."
During this last session of the Court, the venerable Chief-Justice
presided with all his accustomed dignified composure, and simple and
artless grace of manner. It was a striking and touchiii;. spectacle to
see the tall, majestic old man, in his robe of office, move with firm step
to his usual seat among his brothren.  To those especially whose
eyes had been accustomed to follow him for years, and whose early
admiration for the man had ripened into reverence, the scene was well
calculated to awaken the most interesting reminiscences. He stood
among them a relict of the past; the last link which connected the
government of that day, with the first years of the republic. He had
outlived all his former associates. Of the judges who sat with him,




JOHN MARSHALL.                      451
during the first ten years of his service, not one remained. Judge
Story, the eldest then in commission, had come to the bench a young
man, at a period when Marshall might already have been called a veteran, and when his fame as a jurist was well nigh at its zenith. The
great lawyers who frequented the Court, and were engaged in argument before him in former years, had, nearly all of them, disappeared.
Webster, it is true, remained, then as ever, the leading counsel in the
most important causes,.and at times the voice of Clay was heard at
the bar of the Court;-but Wirt had passed away, and Pinkney, and
Dallas, and Martin, and Dexter, and Emmett, and Wells. Yet the
venerable form of the Chief-Justice, as lie stood thus alone among his
brethren of the bar: and the bench-alone among a new generation of
men, excited no painful emotion or compassionate feelin.g. Men felt
in his presence notling but a serene, a cheerful, almost a lively satisfaction. There were no regrets for the past, nothing to wish for the
present, and nothing to fear for the future, for the measure of his
fame was full, and with the clear light of his intellect still shining undimmed-still glittering bright and steady over the snows of fourscore
winters-it was not likely that that fame could now be impaired. It
is stated that Marshall in the latter years of his life feared that he
might not retain the full use of his faculties in his old age, and had
for some time contemplated a retirement from the bench. He had
mentioned the subject to confidential friends, and charged them not to
let him remain on the bench a day after they suspected his mind was
on the wane.  It is also stated that these friends, from  a deep reverence and affection for the Chief-Justice, had determined to act upon
the suggestion if the time should ever arrive in which it was proper to
be done.*  That time fortunately never came. Tile record of the
last session of the Supreme Court, at which he presided, and the reports of the opinions he delivered in some of the cases then argued,
attest that his faculties remained in their full power to the last. His
setting sun, says the authority I have quoted, wan seen in its clear, unclouded splendor, beaming as it descended with a larger orb and more
softened light, until the very moment when it sunk beneath the horizon, with a beautiful and tranquillizing transparency.
The health of the Chief-Justice began visibly to fail toward the
* 3 New York Review, 340.




452               LIVES OF THE CHIEF-JUSTICES.
close of the term. Early in March, Judge Story writes: "       e still
possesses his intellectual powers in very high vigor, but his physical
health is manifestly on the decline."  And yet, notwithstanding bodily
weakness, and almost unremitting pain, he continued to bear up with
an uncomplaining spirit; and though the loss of his wife visibly and
deeply affected him, he maintained to outward view at least, his habitual calmness and serenity of'temper.*
At the close of this session of the Court he returned to his residence in iPchmond.    Here he was seized with a serious and alarming
illness.  Early in June, however, he got better, and continued to improve, so much so as to receive the visits of his friends, and indeed to
inspire temporary hopes of his recovery.  Anlong those who had an
interview with him at this period was Chancellor Kent, then on a visit
to Virginia.t It was soon apparent, however, that this favorable
prospect was delusive.  His constitution had become shattered, so that
but little hopes were now entertained of anything but mere temporary
relief.  On the advice of his friends he consented to be taken to Philadelphia, in the hopes of obtaining, as upon a former occasion, some
aid from the distinguished medical skill of that city.  He was accompanied by three of his sons; and during the brief remnant of his
Two or three years previous to this period, Judge Story, in a letter to his
wife, alludes to the effect on the mind of Marshall of his recent affliction: " On
going into the Chief-Justice's room this morning, I found him in tears. He had
just finished writing out for me some lines of General Burgoyne, of which he
spoke to me last evening as eminently beautiful and affecting. I asked him to
change the purpose and address them to you, which he instantly did, and you
will find them accompanying this. I saw at once he had been shedding tears
over the memory of his own wife; and he has said to me several times during the
term, that the moment he relaxes from business he feels exceedingly depressed,
and rarely goes through a night without weeping over his departed wife. She
must have been a very extraordinary woman so to have attached him; and I
think he is the most extraordinary man I ever saw for the depth and tenderness
of his feelings."
t I cannot vouch for the accuracy of the following anecdote of the Chancellor's
interview with Chief-Justice Marshall, chronicled in the Richmond papers of the
day. Kent, it is said, introduced himself, and observing that he had heard of the
Chief-Justice's indisposition, added, that not knowing whether he should see him
in the next world, he was resolved to have that pleasure in this.
The Chancellor, while in Richmond, visited the "' Quoite Club," where his presence attracted very marked attention.




JOHN MARSHALL.                         453
days passed in that city, was attended by them, and by many valued
friends, among whom was his brother on the bench, Mr. Justice
Baldwin, who, like all his associates, entertained for the Chief-Justice
a respect and affection amounting almost to reverence. The death of
his eldest son * who was killed at Baltimore by an unfortunate accident, a few days before his father's decease, was concealed from the
Chief-Justice, and everything that considerate affection and kindness
could prompt, was done to smoothe his passage to the tomb.  He was
conscious of his approaching end, and with his faculties unimpaired to
the last, expired on Monday, the 6th July, 1835, having nearly completed his eightieth year.
The body of the Chief-Justice was brought to Richmond, accompanied by General Scott, Judge Baldwin, and a deputation of the bar of
Philadelphia, who on their arrival at Richmond were received as the
guests of the city. The ceremonies of the funeral were solemn and
impressive. " The city bells," says the Richmond Enquirer, " tolled yesterday nearly the whole day-guns were fired-and, perhaps, no funeral
procession, in this city, has ever been more extensive and solemn than
the one which yesterday attended him to the grave."
The funeral services were performed by Bishop Moore, according to
the ritual of the Episcopal Church, of which the deceased was a
member.t    On its entrance into the city the corpse was met at the
Union Hotel by an imposing procession of the civil authorities, military, clergy, masonic brethren, and citizens, and was taken to his own
Mr. Thomas Marshall, a gentleman of fine talents and attainments, and at the
time of his death a member elect of the Virginia House of Delegates. He was
on his way to visit his father at Philadelphia. While walking near the Courthouse in Baltimore, a violent thunderstorm arose, and Mr. Marshall with a friend
sought shelter from the rain in the hall of the Court-house. A chimney of the
building, struck with lightning, as it was thought, fell upon the stairs of the
Court-house, and a portion of it in that part of the hall where Mr. Marshall stood,
striking him and wounding him so severely that he died early the next morning.
t "Among Christian sects," says Judge Story, "he personally attached hhnself to the Episcopal church. It was the religion of his early education; and
became afterwards that of his choice. But he was without the slightest touch of
bigotry or intolerance. His benevolence was as wide as Christianity itself. It
embraced the human race. IHe was not only liberal in his feelings and principles,
but in his charities. His hands were open upon all occasions to succor distress,
to encourage enterprise, and to support good institutions."




454             LIVES OF THE CHIEF-JUSTICES.
house, according to his request. Thence it was carried to the new
burying ground, where it rests near the ashes of his wife.*
The death of Marshall excited a deep sensibility in the public mind
throughout the country, and every possible mark of respect was shown
to his memory, particularly by the members of the bar and in the various
courts of justice. The most eminent of his professional brethren were
selected and consented to deliver eulogies upon his services and character-Story, Kent, Webster, Binney, Sargeant. A collection of the
proceedings of the different Couits, their resolutions, the addresses of
the bar, the responses from the bench, would fill a volume. From
all these I select one passage only-a single sentiment-the resolutions
adopted by the Charleston bar. It is a sentiment so singularly just
and beautiful, so modest, so truthful, and yet so profoundly suggestive, that it deserves to be engraved on the marble bust of the ChiefJustice, which stands on its pedestal in the hall of that tribunal in
which he so long presided:-" Though his authority as Chief-Justice
of the United States," says the Charleston resolution, " was protracted
far beyond the ordinary term of public life, no man dared to covet his
place, or express a wish to see it filled by another. Even the spirit
of party respected the unsullied purity of the Judge, and the fame of
the Chief-Justice has justified the wisdom of the Constitution, AND RECONCILED THE JEALOUSY OF FREEDOM TO THE INDEPENDENCE OF THE JUDICIARY.?
It might be expected that having thus followed the Chief-Justice to
the close of his career, and sketched, with perhaps a too free pen, his
judicial services, his opinions, and his public character, I should speak
of his domestic and social virtues, and of that happy combination of
faculties which threw a charm around his fireside, and over his intercourse in private life. This would be proper, doubtless, but can
scarcely be necessary. I might, indeed, speak of that rare combination
of virtue and wisdom which his private as well as his public life manifested
-of that wise and considerate propriety of conduct-that natural dignity
of deportment-that love of truth and deep sense of moral and religious
obligation-that unaffected modesty-that simplicity of character, man.
ners, dress, and deportment-that deep sensibility and tenderness-that
ardent love of home and attachment to the pleasures of the domestic
* Richmond Enquirer, July 10, 1835.




JOHN MARSHALL.                      455
circle —that respect, courtesy, and kindness, which he always manifested for the female sex-that absence of all selfish feeling-that
benevolence, and that kindly charity, which was not only a principle
and rule of his life, but an innate sentiment of his heart. All these
might be spoken of in terms of unqualified respect and admiration;
but the task has been already done by the hand of another, his intimate companion and friend, for twenty-four years, and in a manner
which none may hope to equal or even to imitate.*
In bringing this sketch to a close, however, I cannot refrain from
introducing the following tribute to his domestic virtues, from the pen
of a venerable kinsman, as preserved by one of his eulogists —a tribute
as full of affectionate tenderness, as it is of a touching simplicity, and
genuine truthfulness:
" He had no frays in boyhood. He had no quarrels or outbreakings in manhood. He was the composer of strifes.  He spoke ill of
no man. He meddled not with their affairs. He viewed their worst
deeds through the medium of charity. He had eight sisters and six
brothers, with all of whom, from youth to age, his intercourse was
marked by the utmost kindness and affection; and, although his eminent talents, high public character, and acknowledged usefulness, could
not fail to be a subject of pride and admiration to all of them, there
is no one of his numerous relatives, who has had the happiness of a
personal association with him, in whom his purity, simplicity, and affectionate benevolence did not produce a deeper and more cherished
impression than all the achievements of his powerful intellect."
And to this may be added the last, 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 an evidence of that warm affection, and
that undying and reverential admiration, which STORY never ceased to
entertain for MARSHALL. The lines, written but a few months after the
death of the Chief-Justice, were intended as an inscription for A CENOTAPH.
* Sketch by Judge Story. Miscellanies, pages, 676 to 682,
t Mr. Binney. Address before the Councils of Philadelphia.




456               LIVES OF THE CHIEF-JUSTICES.
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 the 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."




ROGER B. TANEY.








ROGER B. TANEY.
To the stranger who for the first time visits the Capitol at Washington, there is no more interesting or attractive place of resort than the
hall where are held the sessions of the Supreme Court of the United
States. It is situated on the ground-floor of the building, in the story
below that which contains the chambers where the two branches of
the National Legislature assemble. The approach to it, through the
main part of the Capitol, is by no means inviting. It is from the
dark, damp, cellar-like, circular enclosure immediately under the rotunda, where groups of colossal columns are thickly clustered together
for the support of the dome above, conveying to the mind the sole
idea of solid, massive, Egyptian-like architectural strength. A hall
leading from this enclosure to the south entrance of the Capitol conducts to the Supreme Court room, an apartment of moderate size,
which, though neat, is perfectly plain in appearance, and simple in its
decorations and furniture.  This apartment is lighted by windows
immediately behind the seats of the judges-the bar and the audience
sitting in front. The consequence of this arrangement is, that so far
as the audience is concerned the light is defective, and it is often difficult, and in a dark day impossible, for those sitting immediately in
front,to distinguish the features of the members of the Court after
they have taken their seats.
If the visitor desires to see the Court in session, he has but to take
his seat and wait patiently until the appearance of the Judges.  He
will ordinarily observe some few members of the bar, other than the
counsel engaged in the cause under argument, sauntering in, and
taking their seats, and occasionally strangers or other visitors attracted




460             LIVES OF TIE CHIEF-JUSTICES.
by interest or curiosity; unless, indeed, some advocate of distinguished
reputation is to address the Court, or some cause of more than usual
interest is to be called, in which case the Court room is quickly
filled, and often by an imposing and brilliant audience of ladies.
It may be perhaps a few minutes after the appointed hour of meeting,
when, without any flourish of parade, or announcement, the Judges
enter in their black silk gowns, in procession,ranked according to the
dates of their respective commissions. At the head of the procession
you observe a tall, thin man, slightly bent with the weight of years,
of pale complexion, and features somewhat attenuated and careworn,
but lighted up by that benignant expression which is indicative at
once of a gentle temper and a kindly heart. With a firm and steady
step, by no means indicating the years which have actually rolled over
his head, he approaches to take his seat. His brothers and associates
range themselves on either hand, according to their rank, determined
by the date of their respective appointments. Immediately on the
right Mr. Justice McLEAN of Ohio, the oldest Judge in commission
on the bench, takes his seat; Mr. Justice WAYNE of Georgia on the
left; and so alternately on the right and left Mr. Justice CATRON of
Tennessee, and Mr. Justice DANIEL of Virginia, Mr. Justice NELSON
of New York, and Mr. Justice GRIER of Pennsylvania, Mr. Justice
CURTIS of Massachusetts, and Mr. Justice CAMPBELL of Alabama.
Presently the crier will open the Court with that quaint and half
ludicrous old formula, which has come down to us from the earliest
times, commencing, "0 yes-O yes," and ending, "God save the
United States and this honorable Court!"  The Court is now in session and you are in the presence of one of the three co-ordinate
branches of the Federal government.
If it be a cloudy day, you will not be able to distinguish, beneath
the dark mass of hair which overhangs the forehead of the tall, thin,
venerable old man who has just taken his seat in the midst of that
group of Judges, anything more than the mere outlines of his features;
but you will presently hear his voice, in the blandest and most
affable of tones: "The Court is ready to hear you, Mr AttorneyGeneral," whereupon the argument of the case at bar immediately
proceeds.
The person who has spoken these words is MR. CHIEF-JUSTICE TANEY,




ROGER B. TANEY.                      461
of whose life and judicial career I am now to attempt a sketch. He
is just seventy-seven years of age,* and though not in the enjoyment of
robust health, as his countenance indicates, yet he continues in the full
possession of his vigorous intellectual faculties. The present session
completes the eighteenth year of his service on the bench of the tribunal over which he presides, and to which he was appointed as the
successor of Chief-Justice Marshall.
ROGER BROOKE TANEY is a native of Maryland, and was born in
Calvert County, in that State,on the 17th day of March, 1777. His
ancestors, both on the father's and mother's side, were among the
earliest settlers of Maryland, having emigrated from England to that
colony in Cromwell's time. The naame of Taney is of Welsh, or at
least of aboriginal British origin, and though not common ili England
at the present day, is, I am informed, still known there.t  The paternal ancestor of Mr. Taney, who came to Maryland about the year
1656, was of the Catholic faith. Like the Puritans of England in the
time of Charles I., he sought repose and liberty of conscience in the
wilds of the new world; for the otherwise liberal policy of the Protector, in matters of religious worship and faith, did not embrace the
Catholic, and indeed scarcely included the prelatist, within the pale
of toleration. While the government of Charles I. drove the Puritan
to the shores of New England, that of Cromwell forced the Catholic
into the wilderness of Maryland, and thus America became peopled
with the bone and sinew of the English nation. The descendants of this
gentleman for several generations, Catholics like himself, experienced,
even in their secluded retreat in Calvert County, where they tilled the
soil in peace with all men, those civil disabilities, and political disfranchisements, which the intolerant legislation of the mother country
fastened upon a proscribed church. The Maryland Convention in
17]6, however, by its Constitution and Bill of Rights, abolished these
arbitrary distinctions, and established full and absolute equality of
citizenship and privilege for all religious denominations. Subsequent
to this period the father of the present Chief-Justice was repeatedly
* March, 1854.
t Its orthography there seems to have corresponded more closely with its pronunciation. The case of Tawney vs. Crowther may be found in 4th Brown's
Chancery Cases.




462              LIVES OF THE CHIEF-JUSTICES.
elected to represent his native country in the Maryland House of
Delegates.
On the mother's side Chief-Justice Taney is descended from Dr.
Roger Mainwaring, Bishop of St. David's, in the time of Charles I.,
a gentleman of a noble family from  Cheshire. The Bishop of St.
David's was the friend of Archbishop Laud, and owed his preferment
in the church to the good offices of that celebrated but unfortunate prelate. His second daughter, Mary, intermarried with Robert Brooke,
Esquire, a gentleman of good family in Sussex, and one of the issue of
this marriage was Roger Brooke, the lineal ancestor of the ChiefJustice, from whom his Christian names are derived. The family
came to America in 1650, and settled in Calvert County, where the
paternal ancestors of the Chief-Justice, after their arrival, also resided.*
ROGER BROOKE TANEY was born in Calvert county in the State of
Maryland, on the 17th March, 1777. He was educated at Dickinson
College, Carlisle, in the State of Pennsylvania, of which Institution he
became a student in the spring of 1792. The College was then under
the superintendence of the Rev. Dr. Nesbitt, a Scotch Iresbyterian
divine, celebrated for his wit and classical attainments.  Taney
continued a member of this institution three years, and was graduated
in the year 1V95. He commenced the study of the law in the spring
of the following year at Annapolis, where the principal courts of Maryland were then held, in the office of Jeremiah Townley Chase, who
two years before had been appointed Chief-Judge of the General Court
of Maryland. The bar of this Court, at that time, was ornamented
with a brilliant constellation of professional talent, which might compare favorably with that of any other State in the Union. The
advantage of mingling with his older professional brethren, and of
witnessing their efforts, was not without its influence on the mind
of the yoia  staeant, aln excityl in his breast a warm and eager
* Robert Brooke, who came to America in 1650, was the first who seated Patuxent, about twenty miles up the river, at Delabrooke. Soon after his arrival Lord
Baltimore appointed him Commander of Charles County, and when the government of Cromwell became established in 1652, he was chosen by the Commissioners for reducing the Plantations, Governor of Maryland. About the same
time he removed to the opposite side of the river Patuxent, and dying on the 20th
July. 1663, was buried at his seat, Brooke Place Manor, in Calvert County,
Maryland.




ROGER B. TANEY.                     463
spirit of professional emulation. During this period, too, he laid the
foundation of those solid professional attainments, and acquired those
habits of industry and patient investigation which contributed so
largely to his subsequent eminent success.
In the spring of 199, three years after he commenced the study of
the law, he was admitted to the bar, and immediately returned to his
native county of Calvert to enter upon the practice of his profession. Almost before he had made his debut at the bar, however, he
was called into political life, being elected in the autumn of the same
year a delegate to the General Assembly of Maryland. Mr. Taney
was then scarcely twenty-three years of age and the youngest member
of the House of Delegates; yet it is said, that amid the stormy debates which occurred in that body, consequent upon the unprecedented popular excitement growing out of the canvass between Adams
and Jefferson for the presidency, he displayed an intrepidity of character and an uprightness of motive which gained for him the admiration of his cotemporaries. He was in the house of delegates at the
time the announcement of the death of Washington was made to that
body, and well remembers the impressive scene. As Charles Carroll
of Carrollton, and John Eager Howard, the Committee from the
Senate, entered the hall of the House to make the announcement,
the members received them standing and in respectful silence; and as
Mr. Carroll communicated the afflicting intelligence, the tears streamed
down his cheeks, while many an eye around him was also filled in sympathetic sorrow. It was a moment when the voice of faction was
hushed, and the din of political strife melted away into profound and
reverential silence; for all could unite in heartfelt homage to the memory of the illustrious dead.
Mr. Taney declined a reelection to the Maryland legislature, with
the view of applying himself more closely to the practice of his profession. The following year he removed to Fredericktown, in the
county of Frederick, that being regarded as a more eligible and extended field for the pursuit of his professional avocations. Here
he remained in the practice of the ltaw with a constantly increasing success and growing reputation, until his removal to Baltimore, a period of twenty-two years. When he entered upon it
the scene was entirely new to him. He was comparatively a Strall



464             LIVES OF THE CHIEF-JUSTICES.
ger in that part of the State. A young man of three or four and
twenty, with few acquaintances, little personal influence, and but
a small stock of experience, his was certainly at the outset no
easy and sunshine journey up the steep and rugged ascent which
leads to professional eminence, and which requires, even under
the most flattering auspices, so large a share of hope, ambition and
energy to surmount. "But," remarks the writer of a brief notice of
the Chief-Justice* "the wary and reflecting yeomanry of Frederick,
Washington, Alleghany and Montgomery counties soon discovered
that his industry had no bounds; that he possessed a mind of the
highest order; that judgment, acuteness, penetration, capacious memory, accurate learning, steady perseverance in the discharge of duty,
a lofty integrity, united with a grave and winning elocution were
developed. These qualifications were soon rewarded with an extensive and lucrative practice. As his powers were unfolded with experience, they saw that in the argument of important causes, he disentangled what was intricate, confirmed what was doubtful, embellished
what was dry, and illustrated what was obscure."
It was but a few years after his settlement in Frederick ere Mr.
Taney by the force of his talents and industry raised himself to a respectable and prominent position at the bar. He was soon employed in
many of the most important causes arising in that part of the State.
His practice was both lucrative and extensive, not only in the county
courts in the judicial district in which he resided, but also in the Court
of Appeals. The reports of cases in that Court by Harris and
Johnson exhibit abundant evidence of his ability, his industry and
his success as an advocate, even before his removal to Baltimore.
They show, too, that he was frequently associated with, and opposed
by the most eminent and able members of that distinguished and brilliant bar which then assembled in the Maryland Court of Appeals,
and that he grappled successfully in intellectual conflict with such
men as Pinkney, Winder, Martin, Harper, Williams and Johnson.
Thus in 1821, in conjunction with Mr. Harper, he argued in successful
opposition to Pinkney, Winder and Williams, the highly important
cause of Brown vs. Kennedy, which brought up for discussion, and
* Southern Literary Magazine, June, 1838.
t 5 Harrison and Johnson's Reports, 195.




ROGER B. TANEY.                     465
finally settled, a very novel question relative to the original proprietary
title to lands reclaimed from the navigable waters of Maryland; and
the following year, associated with General Winder and Mr. Murray,
we find him opposed by Harper and Johnson in the argument of a
cause eliciting all the learning connected with the intricate law of
charitable trusts, an argument which from the brief analysis preserved
in the report, seems to have been characterized by an unusual degree
of research and ability.
During the period of his residence in Frederick, Mr. Taney's praoc
tice at the bar was of the most general and miscellaneous character.
It embraced the widest range of subjects and every description of
jurisprudence, criminal as well as civil-in the county courts, the
courts of equity, the Court of Appeals, before commissioners, before
courts martial, and before judicial tribunals of every other character
and description. This indeed is the common experience of most advocates who have risen to eminence at the American bar. Unlike the
example set us in the courts of England, from which both our equity and
common law systems are derived, a division of professional labor or
rather of professional pursuit is not very strictly observed among us.
The exact conveyancer, the skilful pleader, and the ingenious advocate are not unfrequently found united in the same person-and the
framer of a brief is often no other than the very individual who undertakes
to unfold and elucidate it before the Court. The door of every tribunal is supposed to be equally open to the American lawyer, and in
each he is expected to sustain himself with the same degree of ability
and reputation. The practice of Mr. Taney in this respect seems not
to have differed from this common professional experience, and the traditional accounts of his successes in these various and diversified professional engagements, certainly exhibit him as the possessor of no
inconsiderable versatility of talent.
In 1811, associated with John Hanson Thomas, he defended General Wilkinson, then Commander-in-Chief of the United States Army,
before the military court convened at Frederick, to try him on a series
of grave and high accusations. The cause was unpopular. Wilkinson
had aroused the jealousies of the people when he suspended the habeas
corpus in 1806, and imprisoned Bollman and Swartwout as accomplices
in Burr's treason. We have seen him as a witness on the trial of
30




466             LIVES OF THE CHIEF-JUSTICES.
Burr,* where he gained little credit and less popularity, many regarding him as having been himself implicated in Burr's designs. The
manners of Wilkinson were haughty and unprepossessing. lie scorned
instead of attempting to conciliate the popular favor; and besides, he
was in peculiar odium with a large portion of the people of Frederick,
by reason of his having on a former occasion successfully prosecuted,
before a court-martial in that town, a gallant and veteran revolutionary officer. Notwithstanding all this, Mr. Taney did not hesitate
generously to step forward and render his professional services to the
accused, on being selected by him as one of his legal advisers. He
himself shared something of the popular feeling against Wilkinson, and
the latter was no stranger to the fact. Yet with a full knowledge of
Mr. Taney's personal sentiments, so highly did Gen. Wilkinson regard,
not his abilities only, but his integrity and honor, that he selected him
without hesitation as one of his counsel on this important trial. The
notions of Mr. Taney in regard to professional duty were too exalted,
and of too chivalrous a nature, to induce him to think of declining the
ungracious task. Perhaps the very unpopularity of Wilkinson, and
his present helpless and defensive attitude, had more weight with
Taney that any other considerations.  He undertook the defence of
the accused, and fearlessly and without hesitation, braved the public
opprobrium. For several months he labored, loyally, faithfully, zealously, and it must be added, successfully, for his client.  Wilkinson
was acquitted, his sword was restored, and, it is said, his counsel
received no other reward than the gratitude of the veteran's heart.
Other instances might be recorded equally honorable to the professional character of Mr. Taney, in which he unflinchingly braved popular censure in the discharge of his duty, and exhibited a like spirit of
fearless independence. I shall mention but one of the-i, which is still
well remembered by the older inhabitants of Frederick, where Mr.
Taney then resided. A Methodist preacher, well known as Father
Gruber, had been indicted for preaching insurrection among the slaves
at a camp-m-eting of negroes, and AMr. Tancy defended him on his
trial.  The case excited great feeling among many of the inhabitants
of that vicinity who were slaveholders, and the court at which
Graber was tried partook of the excitement.    On the trial, the
*.Jnte, p, 375.




ROGER B. TANEY.                     467
prosecuting attorney, who was not a very capable man, soon broke
down, and one of the Judges, carried away by his private feelings,
and perhaps considering that full justice was not done by the
prosecutor, took the examination of the witnesses into his own
hands. At that time the authority of the Judges with juries was
very great, and Father Gruler was thus placed in imminent peril.
Mr. Taney suffered the examination to proceed for some time, without
interruption, until the Judge, in the heat of his inquiries, asked a
question which was clearly improper and inadmissible. Taney had
found the opp;ortunity for which he had waited, and springing from
his seat, promptly objected to the question as illegal. So well-founded
was the objection, that the other judges were forced to ru'e it against
their brother, and from that moment the examination from the bench
ceased. The prisoner was acquitted, and for a long period the Methodists of that section of the country entertained the kindest feelings
for the Roman Catholic advocate, who had successfully defended their
pastor against both popular excitement and judicial power.
In 1816, Mr. Taney was partially diverted from his professional
pursuits, by his election to the Maryland Senate. Under the State
Constitution, as it then stood, the Senate consisted of fifteen members, whose term of service was five years. They were selected by a
body of electors composed of two members chosen in each county by
the people, and one from each of the cities of Baltimore and Annapolis. Mr. Taney was chosen one of the electors from the county of
Frederick, and appointed by the electoral body a member of the
Senate. His connection with this body, and his associations, both personal and political, were of the most agreeable character. I have
heard the Chief-Justice himself remark, that if there is one portion of
his career which he looked back upon with more satisfaction and
pleasure than another, it is the period of his service in the Maryland
Senate. His reminiscences of the men and events of that time would
no doubt form a highly interesting and agre-eable chapter; but these
reminiscences, except so far as they relate to public affairs, are mostly
witlin his own mlmlory, a ad the memories of the few of his associates
who m.iy still survive. Tile habitual reserve of the Chief-Justice, his
re!lucta:ce to speak of himself, o; of his own acts anld experiences, and
the consequent linited infornatioa in regard to them, possessed even




168             LIVES OF THE CHIEF-JUSTICES.
by those of his friends who know him best, have rendered my inquiries
on the subject fruitless, and prevent me from gratifying any curiosity
which the reader might feel, to know something of those personal and
private recollections which have left behind them such an agreeable
and enduring impression. Of his official services, and the public and
political measures in which he was engaged, being mainly of a local
or State interest, it is perhaps unnecessary here to speak. Suffice it
to say, that he acquitted himself in the Senate, as he had done at the
bar, and as he subsequently acquitted himself on the bench, with
eminent ability. Having served to the end of the period for
which he was elected, he again turned with unremitted industry and
application, and renewed ardor, to the exclusive practice of his
profession.
Mr. Taney removed to the city of Baltimore in the year 1823.
The recent death of Pinkney had left a vacuum in the ranks of the
able and talented bar of that city, which no one, even with professional
abilities of the very first order, could expect at once to fill. Nevertheless, the field was too tempting alike to professional zeal and ambition, to be shunned. Taney entered upon it in the full vigor of his
faculties, with an established reputation, and with talents and attainments that fitted him to maintain it against all opposition.
The death of Martin, of Harper, and of Winder, would have left him
not only confessedly at the head of the Baltimore bar, but almost
without a rival, had not William Wirt removed to that city in 1829,
to dispute with him the sceptre of professional eminence. Within the
year of Wirt's settlement in Baltimore, he and Taney were all that
remained of the older members of the bar in that city. Tley stood,
says Kennedy in his Life of Wirt, among a younger generation-Meredith, Johnson, Glenn, M'Mahon, Mayer,-and at their head, "instructors to guide, models to be imitated, gifted with all qualities to
stimulate the ambition of generous minds striving after an honorable
fame."
On his removal to Baltimore, he entered upon that more enlarged
sphere of practice to which the Federal Supreme Court introduced
him. From this period down to the time of his resigning the office of
Attorney-General of the United States, he was frequently engaged in
the argument of causes in the Supreme Court at Washington, his




ROGER B. TANEY.                     469
name being found upon the record, as counsel in almost every case of
importance, arising from the Maryland district. In 1825, we find him
engaged in the case of Manro vs. Almeida*-an admiralty case from
the Circuit Court of Maryland-in which some very important questions relative to the jurisdiction and practice of courts of Admiralty
and maratime jurisdiction are discussed. This branch of the law, it is
well known, was a favorite study with Judge Story; and the argument of Taney, though he was upon the losing side of the case, seems
to have attracted the attention of that eminent judge. At the very
next session'of the court, in a private letter to a friend at home, Story
remarks: "Thle Court has been engaged in its hard and dry duties
with-uninterrupted diligence. Hitherto we have had but little of that
refreshing eloquence which makes the labors of the law light; but a
ease is just rising which bids fair to engage us all in the best manner.
Webster, Wirt, Taney-a man of fine talents, whom you have probably not heard of-and Emmett, are the combatants, and a bevy of
ladies are the promised and brilliant distributors of the prizes."t
The case referred to was that of Etting vs. The Bank of the United
States.t  It was a suit involving a large amount of property. One
of the questions raised and discussed was a principle of legal ethics, namely: What concealment or suppression of material facts in a contract,
where both parties have not equal access to the means of information,
will avoid the contract? Taney was associated with Webster, for the
plaintiff in error, who sought to avoid, on the ground of fraud, the contract on which the Bank had recovered judgment, and Emmett, with
the Attorney-General Wirt, appeared for the Bank. What the argument must have been when such " combatants" entered the intellectual arena, the reader will judge for himself. The Chief-Justice, in his
opinion, speaks of the " great efforts which have been bestowed upon
the case," and the "very elaborate arguments which have been made
at the bar." But all these efforts and arguments were wasted, as the
case went off upon a mere question of practice, leaving the principles
of law, which had been discussed, unsettled. Morally it might have
been considered a drawn battle, but for all practical purposes the
* 10 Wheaton's Reports, 473.
t Life and Letters of Story.: 11 Wheaton's Reports, 59.




470            LIVES OF THE CHIEF-JUSTICES.
Bank achieved a complete victory, inasmuch as the Court, being divided in opinion, judgment was affirmed.
Mr. Taney was engaged at the same term-the Attorney-General
Wirt being his associate, and Webster one of his opponents-in the
argument of the interesting case of Cassell vs. Charles Carroll of
Carrollton.* It was a claim made, under the original proprietory title of
Maryland (which had been confiscated during the revolution), to certain quit rents reserved on a large tract of land granted by Lord
Baltimore to the father of Charles Carroll. The whole question, as to
the right of the heir of Lord Baltimore to these quit rents (which the
people of Maryland had repudiated since 1773,) was argued with
great learning and ability on both sides; Mr. Taney sustaining the
defendant against the proprietary claim. Judge Story in his opinion
speaks of the "important and difficult points" discussed, and the
"great ability and care" of the argument, but the decision did not
determine the more important and complex question discussed, as to
the validity of the proprietary claim, it having been placed entirely
upon a collateral question, namely, that the interest under which the
plaintiff claimed, had been long since transferred and divested by a
valid assignment.  The judgment in favor of Charles Carroll, Mr.
Taney's client, was accordingly affirmed.
In the preceding sketch of Chief-Justice Marshall, I have alluded
to the case of Brown vs. The State ofPMaryland,t argued at the January term, 1827, which involved in the discussion, and finally settled,
a principle of constitutional law, of a character so vital and important, as to make this a leading case, always cited as authority and for
illustration, in every future discussion in which the question was raised.
Here Taney again met his former antagonist, William Wirt. Each of
them was associated with a junior member of the Baltimore bar, the
former with Johnson, and the latter with Meredith. The power and
brilliancy of the discussion was equal to the magnitude and importance
of the question presented. That question was as to the constitutionality
of a law of the Maryland legislature, which required the importers of
foreign goods to take out and pay for a license under certain penalties
and forfeitures; an act which it was claimed was repugnant to the
* 11 Wheaton's Reports, 134.
t.nte, page 424.




ROGER B. TANEY.                      41
provisions of the Constitution which vested Congress with power to
regulate commerce, and which prohibited the States from levying imposts. Taney sustained the State law-the Attorney-General opposed
it. The latter succeeded, but the former came out of the contest
with untarnished laurels, and undiminished reputation. Though in the
warmth of professional excitement and emulation, he was at first inclined to regard the decision of the Court with disfavor, yet his cooler
and more matured judgment fully approved it. Twenty years afterwards, in one of those frequent discussions of the same constitutional
provision, to which he listened on the bench, he gave his full assent, as
a judge, to the correctness and propriety of the decision.*
Taney encountered the Attorney-General in two other cases at
this session of the Court. In the first of these, The United States vs.
Gooding,t an indictment for a violation of the Slave Trade act, he
was successful, Judge Story delivering the opinion of the Court, which
declared the indictment fatally defective; in the latter, Drummond vs.
Prestman,t presenting a question of commercial law, he failed, Judge
Johnson delivering the judgment. These cases, however, present
nothing worthy of note, except to the professional reader, by whom
they may be consulted in the reports.
The following May Mr. Taney was engaged in opposition to his
renowned antagonist, Mr. Wirt, on the argument of the celebrated
mandamus case against the Rev. Mr. Duncan, which the graphic pen
of Mr. Kennedy has so felicitously described in his life of Mr. Wirt.
Mr. Duncan was a Presbyterian clergyman of Baltimore, and the proceeding seems to have been to oust him, and the portion of the congregation who adhered to him, from the possession of the church
property. This gave Mr. Wirt the opportunity of making one of
* In the decision of the License Cases, 1847, referring to the case of Brown vs.
Maryland, he remarks: " I at that time persuaded myself that I was right; and
thought the decision of the Court restricted the powers of the State more than a
sound construction of the Constitution of the United States would warrant. But
further and more mature reflection has convinced me that the rule laid down by
the Supreme Court is a just and safe one, and perhaps the best that could have
been adopted for preserving the right of the United States on the one hand, and
of the States on the other, and preventing collision between them.
t 12 Wheaton's Reports, 460.
t 12 Wheaton's Reports, 620.




472              LIVES OF THE CHIEF-JUSTICES.
those pointed and happy quotations, which, in the hands of that
master of rhetoric, often carried with them a more potent conviction
than the subtlest argument or the clearest demonstration. We can
well imagine what must have been the effect, upon the thronged audience crowding the Court-room, of that splendid burst of declamation
with which Wirt concluded his speech, especially, when turning to the
excellent Mr. Duncan, modestly shrinking at the sound of his own
praises, "he exclaimed," says Mr. Kennedy, "with the most graceful
elocution,-' Besides, this Duncan
lHath borne his faculties so meek, hath been
So clear in his great office, that his virtues
Will plead like angels, trumpet-tongued against
The deep damnation of his taking off.' " *
What may have been the merits of Mr. Taney's argument, or the
force of his reasoning, in comparison with that of his gifted antagonist,
we are left to conjecture.  Certain it is he failed in his application, and
Mr. Duncan and his friends were left in possession of the field, or,
more literally, the church property.  The trial being before the
Court-an audience proverbially unimpressible, and deaf to eloquent
appeals and rhetorical figures-it is but reasonable to suppose that
Mr. Wirt owed his victory as much to the solidity and fire of his
argument as to the felicity and aptness of his illustrations.
During the same year that this trial occurred-the year 18271 — r.
Taney received the appointment of Attorney-General of Maryland.
This appointment was made by the Governor and Council; and it is a
fact worthy of mention, as it is equally honorable to both parties, that
Mr. Taney was at that time politically opposed to the body which
conferred upon him the office. The latter were the ardent supporters
of Mr. Adams, who was then President, and the former was equally
decided and open in his preference for General Jackson. Yet, notwithstanding it was a time when party feelings ran high, and the contest had become animated, the Maryland Council did not hesitate to
confer the appointment upon Mr. Taney, thus evincing in a most
marked manner their high appreciation of his personal character as
well as of his distinguished professional abilities. This office he held
* 2 Kennedy's Life of Wirt, page 199.




ROGER B. TANEY                      473
until June, 1831, when he resigned it, upon receiving the appointment of Attorney-General of the United States.
In the mean time Mr. Taney continued his extensive and lucrative
practice in the Federal Courts. Among the important cases in
which he was employed intermediate the date of his appointment as
Attorney-G eneral of Maryland and as Attorney-General of the
United States, may be mentioned the following: McLanahan vs. The
Universal Insurance Company,* at the session of 1828, in which
some highly interesting questions on the law of marine insurance
arose, and in which he successfully encountered the Attorney-General
Wirt, and that eminent and able lawyer, Mr. David B. Ogden, of
New York. The interesting and important case of Van Ness vs. The
City of Washington and the United States,t at the session of 1830,
eliciting a splendid forensic discussion, in which Mr. Taney, the then
Attorney-General Mr. Berrian, Mr. Wirt, Mr. Webster, and Mr.
Jones participated. The cases of Tiernan vs. Jackson, The Petapsco
Insurance Company vs. Southgate, and Shepherd vs. Taylor, at the
session of 1831,t in the two former of which Mr. Taney was opposed
by Mr. Wirt, and in the latter, involving an interesting question of
Admiralty jurisdiction, was associated with that eminent counsel. In
all these discussions Mr. Tancy acquitted himself with marked ability,
and fully vindicated his claim to stand with Webster, and Wirt, and
Berrien, in the very front rank of advocates at the American bar.
During all this period Mr. Taney was engaged in an extensive and
constantly increasing practice in the Maryland State Courts, and
especially in the Court of Appeals. I have already alluded to the
seven volumes of Harris and Johnson's reports-extending over a
period of twenty-six years, commencing at the year 1800-as exhibiting
abundant evidence of the professional talent of the Chief-Justice prior
to his removal to Baltimore. After this period the field of his labor
was enlarged, and his services were sought, on one side or the other, in
nearly every controversy of great magnitude litigated in the highest
tribunal of the State. The professional reader who has the curiosity
to look through the two volumes of Harris and Gill's reports, extend* 1 Peters' Reports, 170.
t 4 Peters' Reports, 232.
t 5 Pcters' Reports, 580, 604, 675.




474             LIVES OF THE CHIEF-JUSTICES.
ing from 1826 to 1829, and the first two or three volumes of Gill and
Johnson's, bringing the reported cases down to the time of Taney's
appointment as Attorney-General of the United States, will perceive
that he was employed in most of the cases of importance argued during this period in the Maryland Court of Appeals. These cases.embrace every variety of controversy known to the law, both legal and
equitable, the Court having appellate jurisdiction over the Court of
Chancery as well as the Common Law Courts. To show the diversified character of his professional avocations, and the extent and variety
of his labors, it may not be amiss in this place briefly to allude to
some of the more prominent of these cases. They are taken almost
at random from the volumes of reports above alluded to.
The case of Ringgold vs. Rinrggold,* a case of great magnitude and
interest, drawing out a discussion of the whole equitable doctrine of
trusts, and the relative rights, duties, and responsibilities of trustees
and their cestuis qae trast, was decided in 1826.  Mr. Taney was
associated in the argument with Wirt, Jones, and Magruder, and
opposed by Berrian, Hoffman, and Mayer.
Betts vs. The Union Bank of Maryland,- at the June term 1827,
called out from him an admirable argument in support of the common
law principle, that although a particular consideration is mentioned
in a deed, yet proof of another consideration, which is not repugnant
to the one mentioned, may be given to support the deed.
At the same term, in the case of Oliver vs. Gray,$ he discussed with
marked ability the doctrines of the statute of limitations, and particularly that branch of it relative to the nature and character of the
acknowledgment required to take a case out of the statute.
The Union Bank of Maryland vs. Ridgley,~ a case which occupies
more than a hundred pages of the report, presented some interesting
questions relative to the law of corporations, but the decisive point in
the discussion seems to have turned upon one or two technical questions of pleading, the argument of which shows the mind of Taney
to have been as acute and subtle in the analysis of what may be
* 1 Harris & Gill's Rep., 11.
t 1 Harris & Gill's Rep., 175.
t 1 Harris & Gill's Rep., 204.
~ 1 Harris & Gill's Rep., 324.




ROGER B. TANEY.                     475
called the metaphysics of the law, as the most enthusiastic disciple of
Saunders or Chitty might wish to encounter.
In Osgood vs. Lewis,* at a term of the Court in 1829, he had Wirt
for his antagonist, and succeeded against that renowned advocate in
a discussion which laid open the whole of that interesting branch of
legal ethics which embraces the doctrines of the law of warranty, and
of implied fraud or deceit in the sale of chattels.
The highly important case of Pawsons' Administrators vs. Donnell,t
presenting some grave questions of maritime law, and involving interests of great magnitude, followed, in which Taney was again opposed by Wirt. The case was submitted on written arguments, that
of Taney, together with his reply to the brief of Mr. Wirt, comprising
sixty pages of the report, covers the entire range of the controversy,
and thoroughly exhausts the discussion on his side of the question.
The following year he distinguished himself in the argument of two
highly important cases of Marine Insurance, Allegre Administrators
vs. the Maryland Insurance Co,$ and the Chesapeake Insurance Co.
vs. Allegre's Administrators.~  These cases involved the examination
of a branch of the law lying rather beyond the ordinary circle of professional study, except to the practicing advocate of a large commercial
city, and until the removal of Mr. Taney to Baltimore, his attention
of course had not been very closely directed to it. The result, however, was highly honorable to his reputation, exhibiting as it did the
versatility of his genius, its comprehensiveness and generality, and its
perfect adaptation to the entire range of legal investigation and forensic
debate. It should be added that the whole argument, in both cases,
as shown by the report, was uncommonly able, Wirt, Meredith, and
Mayer, being engaged with Taney in the discussion.
Many of the cases in which Taney was engaged were long, intricate,
and tedious chancery suits, requiring, in their successful management,
not only an exact and comprehensive knowledge of the principles of
equity jurisprudence, but a plodding perseverance, a laborious industry,
and a patient investigation, to which genius, in its lofty aspirations,
* 2 Harris & Gill's Rep. 496.
t 1 Gill & Johnson's Rep., 1.
t 2 Gill & Johnson's Rep., 136.
~ 2 Gill & Johnson's Rep., 164.




476             LIVES OF THE CHIEF-JUSTICES.
will rarely stoop, and the advocate of established reputation too often
regards as an irksome and ungracious task.  As specimens of this
class of cases the professional reader may consult the following, argued
by Mr. Taney at the bar of the Court of Appeals: Hudson vs. Warner and Vance,* involving a discussion of the reciprocal duties and
liabilities of mortgagor and mortgagee, and the rights of creditors in
and to the mortgaged property; McCubbin vs. Cromwell,t requiring
an examination into the nature and character of chancery jurisdiction
and practice in cases of dower, &c.; Williams vs. Carman,J presenting
some interesting questions in regard to equity jurisdiction and practice
in granting relief by injunction, &c., &c. For the management of this
class of cases Mr. Taney seems to have been peculiarly well fitted, as
well by temperament, as by habit and diligent study. IHe entered
upon them relying upon patient industry, perseverance, and labor,
rather than upon the inspirations of genius, and he came out of them,
if not always with success, at least with reputation and honor.
To complete the diversified character of his professional toils during
this period, Mr. Taney, as will be recollected, had upon his hands the
labors of the Attorney-Generalship of Maryland. Among a multitude
of private professional engagements, it not unfrequently happened that
his attention was occupied by important State causes, which found
their way into the Court of Appeals. Thus we meet, in the second
volume of Gill and Johnson, the cases of State of Maryland vs. Wayman, and Wayman vs. The State, ~ raising a very grave question under
the Maryland Constitution, as to the tenure of office in that State;
also The State vs. Scribner and Baker, [ presenting a technical, but
novel point, on an indictment for selling a lottery ticket, in a lottery
not authorized by the State; and various other cases, which perhaps
it would be neither useful nor interesting to allude to in this place.
It should be added, before dismissing this branch of the subject, that
even his appointment as Attorney-General of the United States, did
not entirely withdraw Mr. Taney from practice in the Maryland Court
* 2 Harris & Gill's Rep., 415.
t 2 Harris & Gill's Rep. 443.
t 1 Gill & Johnson's Rep., 184.
~ 2 Gill and Johnson's Reports, 246.
11 2 Gill and Johnson's Reports, 254.




ROGER B. TANEY.                     477
of Appeals. His name appears as counsel in several suits of the first
magnitude and importance, argued while he was Attorney-General,
and a member of the Cabinet of Gen. Jackson; as the case of Chalmers vs. Chalmers, on the equity side of the Court, in 1832; that
of Clagett vs. Salmon, the following year; and the great insurance
case of Maryland and Phenix Insurance Company vs. Bathurst, in
which, with Johnson and Glenn for his associates, he encountered a
formidable array of counsel on the other side, headed by William
Wirt.
The frequent professional encounters of the Chief-Justice with Mr.
Wirt, have already been noticed. Wirt had lost none of that lofty
professional ambition, that intense and eager spirit of emulation, which
had characterized his efforts ten or fifteen years earlier, when, entering
himself upon the Attorney-Generalship, he was accustomed to meet
Pinkney, at the bar of Baltimore, and in the Supreme Court at Washington.  A  debate with Pinkney he then deemed "exercise and
health," and to foil him, in fair fight, a crown so imperishable, that he
felt a kind of youthful pleasure in preparing for the combat.*  Wirt
now sustained to Taney the same position that Pinkney. had sustained
to Wirt. He stood on the topmost round of the professional ladder,
and had reached the very summit of his lofty ambition; and Taney could
with justice say of his eminent rival, as Wirt did not hesitate to say
of Pinkney, that his reputation was so high as to render it no disparagement in being foiled by him, and great glory in even dividing the
palm.t
The perpetual professiol rfinal antagonism existing between them, never
engendered animosity, or degenerated into personal ill-feeling, but on
the contrary, served only to increase the mutual esteem and respect
which each entertained for the talents of the other. Mr. Wirt, though
in general chary of his compliments, did not hesitate to do ample justice to the great abilities of his rival. On one occasion, in a suit in the
United States Court, with that rare felicity of expression, so characteristic of his elegant genius and classic taste, he alluded to Taney,
who was his opponent in the cause, as " the man of moonlight mind;* Letter to William Pope, Oct. 18th, 1818.
f Ibid. 2 Kennedy's Life of Wirt, 74.




478             LIVES OF THE CHIEF-JUSTICES.
I mean," he added, " the moonlight of the Arctics, where you have all
the light of day without its glare!"
No comparison perhaps ought to be made between these distinguished advocates. Their professional talents were as diverse as their
manner at the bar, and their style of elocution. Wirt was the polished
orator, elegant and exact, both in matter and manner, highly ornate,
always warm, sometimes impassioned. Taney, the logician, clear,
calm, and argumentative, directing his simple and unostentatious discourse to the reason, rather than the impulsive feelings and passions.
His manner at the bar, however, has been described as highly impressive. "When his slow and solemn form was seen rising in Court,"
says an observer, "every ear was open, and all eyes were fixed upon
the speaker-the audience insensibly taken captive, and borne away
by the weight of his argument and the tones of his eloquence. He
moved along like the majestic Mississippi, full, clear, and magnificent.
Whenever the late Mr. Wirt was opposed to Mr. Taney, he would
facetiously say, that he dreaded nothing so much as his' apostolic
simplicity.' So soft and amiable was his deportment, that even amidst
the heat and turmoil of nisi prizs litigation, he was never known to
offend the feelings of any of his brethren. His conversation was never
roughened by austerity or pedantry; and when his gallant bearing
extorted from all the most unfeigned praise, he would almost hide
himself from public admiration, with the unaffected modesty of his
native character."*
The office of Attorney-General of the United States, always filled
with commanding ability, had been, for the twenty years immediately
preceding Taney's appointment, adorned with the most splendid
talent which the country has produced. Pinkney, who held the office
a little over two years, resigned it, in 1814, into the hands of Richard
Rush. That gentleman, on his appointment as Minister to England,
in 1817, was succeeded by William Wirt, whose classic intellect and
genius, during a period of twelve years, threw a new lustre around
this dignilied and responsible station. Mr. Berrian, of Georgia, to
whose great capacity in the legislative, as well as the jul'icial forum,
the -wole country will bear honorable testimony, followed Mr. Wirt,
and held the office two years, through the sessions of 1830 and 1831.
* "Southern Literary Messenger,"' June, 183S.




ROGER B. TANEY.                     479
To follow predecessors like these, and to fill the sphere they had
occupied, without suffering by the comparison, required a mind of no
common mould, and abilities of the very highest order. Mere respectability of talent would have had occasion to esteem it a singular piece
of ill-fortune that such an honor should be thrust upon it, at such a
time; while mediocrity must have irretrievably and hopelessly sunk
at the very threshold.
The resignation of Mr. Berrien, who retired with the other members
of General Jackson's Cabinet, opened the way for Taney's appointment to the vacant Attorney-Generalship. He came into office on the
reconstruction of the Cabinet, in June, 1831. The new Cabinet comprised a mass of intellect, and a collective strength and energy, never
surpassed at any period in the history of the government. Besides
the new Attorney-General, its members were, Edward Livingston,
Secretary of State; Louis McLane, Secretary of the Treasury;
Lewis Cass, Secretary of War; Levi Woodbury, Secretary of the
Navy; and Amos Kendall, Postmaster-General. Mr. Duane subsequently succeeded to the place of Mr. McLane, in the Treasury Department, when the latter was appointed Secretary of State, on the
resignation of Mr. Livingston, who was sent as Minister to France.
It has been truly remarked, that the office of Attorney-General has
nothing to recommend it to an indolent man. Its incumbent is, ex
officio, a member of the Cabinet, and his duties, prescribed by the law,
are " to prosecute and conduct all suits in the Supreme Court, in
which the United States are concerned, and to give advice and opinions upon questions of law, when required by the President, or when
requested by the heads of any of the departments, touching matters
which may concern their departments."   These opinions, as YMr.
Southard very correctly remarks in his eulogy upon AMr. Wirt, are
official; "not merely persuasive upon the judgment of other officers,
but, so far as the construction of the law is concerned, regarded as
binding; and if error be committed, the responsibility is, il a great
degree, taken from them and cast upon him-a responsibility by no
means light to a sensitive and well-organized mind."  Mr. Tanmy's
official opinions are to be found in the volume of " Opinions of the
Attorney-Generals," published by order of the Twenty-sixth Congress.
They comprise nearly one lhundred pages of the volume, and though




480              LIVES OF THE CHIEF-JUSTICES.
generally brief, they are all of them distinguished by that clearness
and perspicuity which characterize the mind of their author.
In the other branch of his official duty, that of prosecuting and conducting, in the Supreme Court, the suits in which the United States
were concerned, the records of his labors during the two years in
which he held the Attorney-Generalship, is to be found in the sixth
and seventh volumes of Peters' Reports.    This record shows a great
number and variety of cases argued by Mr. Taney, in his official character, and furnishes ample testimony of his professional ability,
industry, and success. I shall not trespass upon the reader's patience
by attempting a review of these cases.   They embrace, for the most
part, controversies turning upon questions of a purely legal character,
and may therefore be properly passed by without further remark. It
should be said, however, in justice to Mr. Taney, that some of these
arguments were uncommonly able, and were noticed at the time by
the bench, as well as by his brethren of the bar, as being among his
best and happiest efforts. This was especially the case at the session
of the Court in 1833-a session not so remarkable for interesting cases
and brilliant arguments, as some which had preceded it.   "The cases
hitherto argued," writes Judge Story,* "have been of no general
interest; and the arguments have not been striking.   We have however had some fine arguments from Binney and Sargeant, of Philadelphia, and Mr. Attorney-General Taney."t
*Letter to Judge Fay, February 10th, 1833.
t Among the cases at the session of 1832, in which the Attorney-General distinguished himself, may be mentioned The United States vs. The State Bank of
North Carolina, 6 Peters' Reports, 29; McLane vs. The United States, ibid. 404;
and The United States vs. Nourse, ibid. 470. The first of these cases, one of the
earliest arguments of Taney after his appointment to the Attorney-Generalship,
laid open an interesting discussion relative to the origin and nature of the right
of priority of payment of debts due to Government, and whether this right, under
our system, as in England, rested upon sovereign prerogative, or was wholly
founded on positive statute. The Court held, in accordance with the reasoning of
the Attorney-General, that though a statutory, and not strictly a prerogative
right, yet it was to be traced to the same broad principles of public policy which
governed the royal prerogative, namely, the securing of an adequate revenue to
sustain the public burdens, and discharge the public debt, and therefore the statute
should receive a fair and liberal, and not a strict and narrow construction.
Among the important cases argued by the Attorney-General, at the subsequent




ROGER B. TANEY.                      481
As a member of the Cabinet, and one of the constitutional advisers
of the President, Mr. Taney shared his full proportion of responsL
bility in that series of strong and energetic measures which the administration of General Jackson originated and carried out, and which
make so marked a figure in the political history of the country. The
nullification controversy, the question of the recharter of the United
States Bank, the removal of the deposits, and other subjects of the
deepest moment, at that time, agitated the public mind, and divided
the national councils. It is scarcely necessary to add, that, throughout all the stormy contests growing out of these discussions, the
Attorney-General stood firmly and unflinchingly by the side of the
President, and rendered to the measures of his administration an
energetic and effective support. I-e was, from  the beginning, a
decided and earnest opponent of the Bank; and he cooperated so
heartily with the President in his system of prompt and vigorous
action against that institution, as to call down upon his own head, not
the censure only, but the active animosity, pushed to the verge of
proscription, of that powerful majority which then controlled the
Senate and opposed the administration.
I do not design to trace fully the political history of Mr. Taney
during his connection with General Jackson's Cabinet. It was a
period of stormy debates, heated party discussions, and intense popular excitement. The great question of the day-overriding and
absorbing all others for the time being-was the Bank controversy,
a controversy too memorable in the political annals of the country to
be soon forgotten. Mr. Taney was reluctantly drawn into it, and by
the force of circumstances, rather than by any volition of his own, was,
for a brief period, placed in a position to test fully the temper of his
mind and the firmness of his courage. The history and details of this
controversy, in which Mr. Taney acted a part so prominent as to call
down upon himself personally the bitter and unmeasured denunciations
of the most eminent leaders of the opposition, may be consulted more
at large by the reader in the political annals of the day. Reminded
that I am sketching the career of the jurist, and not the politician, I
session of 1833, may be mentioned, The United States vs. Macdaniel, 7 Peters'
Reports, 1; Sampmyrc vs. The United States, ibid. 222; Barron vs. The Mayor
and City of Baltimore, ibid. 243; and Scholefield vs. Eichelberger, ibid. 586.
31




482             LIVES OF THE CHIEF-JUSTICES.
shall pass it by with such brief notice only as the sub;ect seems necessarily to require.
The question of the removal of the deposits from the United States
Bank, arose while Mr. Taney was Attorney-General. We have the
highest authority for the fact, that in every stage of that question he
had been in favor of the removal; so that his conduct, when made
Secretary of the Treasury, was the result of his previous judgment
and convictions of duty.*  The measure, we are assured on the same
authority, originated with the President himself, and was emphatically
his own. Taney, with a single other member of the Cabinet, the
Postnaster-General, warmly approved it; the rest were either indifferent to the project, or opposed it.t  Mr. Duane, the Secretary of
the Treasury, absolutely refused to carry oat the measure, whereupon
the President, with characteristic promptness, decision, and independence, removed him from office, and appointed Mr. Taney in his place.
Though he had neither courted nor desired the post, he did not shrink
from its acceptance, or endeavor to shun the responsibility.  His entry
upon the office at such a time, and under such circumstances, with the
certainty of making himself a prominent mark for the arrows of the
opposition, and staking, as he did, his reputation and character upon
the issue of the controversy, evinced not only a fearless independence,
and firmness of purpose, but a generous devotion and disinterested
friendship, which no one could more fully appreciate, or was more
ready to acknowledge, than General Jackson himself. In his letter to
Mr. Taney, when the latter retired from the office of Secretary of the
Treasury, he expresses these acknowledgments, in language whose
warmth and earnestness attest its genuine sincerity: "Knowing that
such a station was not desired by you," says the President, alluding
to the Attorney-Generalship, " and was in opposition to your course
of life, I could not but feel grateful to you, when, in coiyliance with
my invitation, you exchanged the independence of your professional
pursuits for the labors and responsibilities of the office of AttorneyGeneral of the United States. This sentiment was greatly and
deservedly increased during the last year, when becoming acquainted
with the difficulties which surrounded me, and with my earnest desire
* Senator Benton's Thirty Years' View, p. 414.
t Ibid.




ROGER B. TANEY.                     483
to avail myself of your services in the Treasury Department, you
generously abandoned the duties and avocations to which your life
had been devoted, and encountered the responsibility of carrying into
execution those great measures which the public interest, and the will
of the people, alike demanded at our hands. For the prompt and disinterested aid thus afforded me, at the risk of personal sacrifices, which
were then, probably, and which have now been, realized, I feel that
I owe you a debt of gratitude and regard which I have not the power
to discharge."*
The appointment of Mr. Taney to the Secretaryship of the Treasury, was made in September, 1833. Mr. Benjamin F. Butler, of New
York, was selected to succeed him as Attorney-General. On the 22d
of the same month, was issued the famous order, signed by the new
Secretary of the Treasury, for the removal of the deposits from the
Bank —or more correctly speaking, directing the collectors of revenue
thereafter to cease making their deposits in the Bank, leaving the
amount actually in it to be drawn out at intervals, and in different
sums, according to the course of the government disbursements. The
measure was at once assailed by the opposition press with rancorous
vehemence and acrimony; and the attack thus commenced was transferred to the legislative forum at the opening of the celebrated " Panic
session" of Congress, in December, 1833.
The day after the meeting of Congress, the Secretary of the Treasury communicated his reasons for the removal of the deposits, in an
able and luminous report, which covered the entire ground of the controversy. The propriety and necessity of the act were placed mainly
on the ground of the misconduct of the Bank, and the insecurity of
the public revenue placed in its keeping. As was to have been expected, the report called out prompt action in the Senate, which then
contained a decisive majority against the President and his measures.
Mr. Cliy took the initiative in this action. Soon after the commencement of the session, he called the attention of the Senate to the report
of the Secretary, and submitted two resolutions on the subject. One
of' th.:s- was a resolution of censure upon the action of the President;
the otecr declared the reasons assigned by the Secretary of the TreasuiV, to be " unsatisfactory and insufficient."  After a protracted and
* 46 Ni1s' Register, p. 326.




484              LIVES OF THE CHIEFJUSTICES.
animated discussion, in which all the leading members of the Senate
took part, the resolution was finally passed, on the 5th April, 1834,
by nearly a strict party vote, twenty-eight in the affirmative, to eighteen in the negative.  Ou the same day, the famous resolution of
censure on the conduct of General Jackson, subsequently expunged
from  the Journal by order of the Senate, was carried by a vote of
twenty-six to twenty.*
The passage of these resolutions, and the unusual degree of obloquy
which had been cast upon Mr. Taney during the course of the debate,
indicated pretty clearly the temper of the Senate, and the probable
result of his nomination before that body. Anticipating this result,
the President delayed sending in his nomination until near the end of
the session. In the mean time, in obedience to the resolution of the
Senate, the Secretary prepared and sent in a carefully digested and
elaborate report upon the state of the finances. The report, " replete
with plain facts and luminous truths," as Mr. Benton expressed it, was
not apparently what the majority of the Senate had expected, for,
instead of showing a financial decline and embarrassment of the government resources, it disclosed, notwithstanding "the Bank panic"
was then at its height, an increase in every branch of the public revenue. Mr. Webster attempted to arrest the reading of the report, and
moved its reference to the Finance Committee; but the minority were
determined that it should go forth to the country, and the reading was
insisted on. "It is not what was expected," said Mr. Benton, in the
course of a powerful speech on the subject; " but it is what is true,
and what will rejoice the heart of every patriot in America. A pit
was dug for Mr. Taney; the diggers of the pit have fallen into it;
* The yeas and nays on the resolution declaring the reasons of the Secretary
of the Treasury unsatisfactory and insufficient, are as follows:YEAs.-Messrs. Bibb, Black, Calhoun, Clay, Clayton, Ewing, Frelinghuysen,
Hendricks, Kent, King (of Georgia), Knight, Leigh, Mangum, Naudain,
Poindexter, Porter, Prcntiss, Preston, Robbins, Silsbee, Smith, Southard,
Sprague Swift, Tomlinson, Tyler, Waggaman, Webster.
NAYS.-Messrs. Benton, Brown, Forsyth, Grundy, Hill, Kane, King (of Alabama), Linn, McKean, Moore, Morris, Robinson, Shepley, Tallmadge, Tipton, White, Wilkins, Wright.
On the passage of the resolution of censure upon the President, Mr. Hendricks
and Mr. King, of Georgia, yoted with the minority.




ROGER B. TANEY.                      485
the fault is not his; and the sooner they clamber out the better for
themselves. The people havea right to know the contents of this
report, and know them they shall; and if there is any man in this
America, whose heart is so constructed as to grieve over the prosperity
of his country, let him prepare himself for sorrow; for the proof is
forthcoming, that never, since America had a place among nations,
was the prosperity of the country equal to what it is at this day!"*
The report of the Secretary was communicated to the Senate about
the middle of June. On the 23d of that month his nomination was
sent in, and the next day he was rejected by the same majority which
had declared his " reasons" for the removal of the deposits unsatisfactory-eighteen to twenty-eight.t  The Senate also refused to confirm
the nomination of Mr. Stevenson, Speaker of the House, as Minister
to England.  " These results," says the'Weekly Register,' " were
unanimously expected. The Senate had already pronounced itsjudgment on Mr. Taney in declaring that his reasons assigned for the
removal of the deposits were insufficient."
Mr. Taney immediately placed his resignation in the hands of the
President, and soon after returned to Baltimore. His entrance into
that city had rather the appearance of a triumph than of a defeat.
Escorted by a numerous cavalcade to the Columbian Gardens, which
had been previously arranged for his reception, he there met a large
assembly of his friends and the citizens of Baltimore, whom he addressed in vindication of his character and conduct. A public dinner
was given to him soon afterwards at the same place, at which Mr.
Benton, of the Senate, and Mr. Allen, of the House of Representatives, were present. Nor were these demonstrations of approval confined to the city of Baltimore. They were manifested elsewhere, and
indeed all over the State of Maryland. On the 6th of August he
was entertained at a public dinner by a numerous assemblage of his
old neighbors and friends of Frederick, where he had so long resided.
In the deeply impressive address which he made on that occasion* Senator Benton's Thirty Years' View, pp. 462, 463.
t Though the majority was the same, there was a trifling alteration in the
character of the vote: thus, Mr. Hendricks, of Indiana, and Mr. King, of Georgia,
who on the former occasion had voted with the majority, now voted in favor of
confirmation. Mr. McKean did not vote, and Mr. Moore voted against the confirmation.




486             LIVES OF THE CHIEF-JUSTICES.
speaking of his rejection by the Senate, of the studied defamation
which had been heaped upon him, and of the ultimate vindication of
his character from the aspersions of his opponents-he beautifully
alluded to his former residence and associations in Frederick:" Having, as I have already said, had no connexion until recently with
the General Government, I was altogether unknown to the great
body of the citizens of the other States, and cannot, therefore, in reply to the assaults made upon me, appeal to their knowledge of my
principles and conduct. But in Maryland it is othewise. Born in
the State, my life has been passed in the midst of its citizens, until
age is now coming upon me. To them I can confidently appeal, for
they have known me from my childhood. To the citizens who now
surround me, I can still more confidently, for among them I passed
twenty-two years of the prime of my life, taking an active part during
all that time in their public concerns. It is from the people of Maryland that the citizens of other States must in a great measure learn
my character and my principles-and of none more justly can the inquiry be made than of the citizens of this county-who have so long
and so intimately known me."
In a speech delivered by Mr. Taney at Elkton, on the 4th September, 1834, at a public dinner given to him by the Jackson Republicans
of Cecil county, he took occasion very fully to vindicate his own conduct, and to repel the assaults which had been made upon him.
Some recent expressions of Mr. Webster, who, in a late public address,
had alluded to Mr. Taney as the " pliant instrument" of the President, called out from him on that occasion a sharpness of reproof and
a severity of language which he was not often accustomed to use.
"It is well understood," he. remarks, " that when my nomination was
before the Senate for their decision, no charge was brought against
me-not a word of accusation was uttered, and I was rejected by a
silent vote. If there was supposed to be anything in my character
and conduct which justified my rejection, then was the time to have
brought it forward. The charge could then have been investigated,
But this was not done. And I had, therefore, a right to expect that
no senator who had given a silent vote for my rejection, would, after
the close of the session, follow mt, with the spirit of hostility, into
private life. In one instance, and but one, as far as my knowledge




ROGER B. TANEY.                      48T
extends, has this expectation been disappointed. And I find that at a
public dinner at Salem, some time ago, Mr. Webster of the Senate
took occasion to speak of me as the'pliant instrument' of the President, ready to do his bidding."  Mr. Taney then meets and answers
the imputations thrown out by Mr. Webster; and, having fully replied to him, and corrected him in some of his statements of facts, he
makes the following tart and caustic personal application.  "Neither
my habits nor my principles lead me to bandy terms of reproach with
Mr. Webster or any one else. But it is well known that he has found
the Bank a profitable client, and I submit to the public, whether the
facts I have stated do not furnish ground for believing that he has
become its'pliant instrument,' and is prepared on all occasions to do
its bidding, whenever and wherever it may choose to require him. In
the situation in which he has placed himself before the public, it would
far better become him to vindicate himself from imputations to which
he stands justly liable, than to assail others." *
Attempted political proscription rarely fails to re-act upon its
authors and to advance the fortune of the person unjustly proscribed.
Two or three years before this period Mr. Van Buren had been rejected by the Senate as Minister to England; and now, as Vice-President of the United States, he was the presiding officer in that very
body which had condemned him. Mr. Taney had been rejected by the
same body, and his name was now mentioned in some quarters for the
Vice-Presidency, in connexion with that of Mr. Van Buren for the
Presidency. It is by no means improbable that such might have been
the result of the condemnation of Mr. Taney by the Senate, had it not
been for his entire withdrawal from politics on being nominated by
the President to fill a position more congenial to his tastes and habits,
and the pursuits and studies of his whole previous life.
In January, 1835, the venerable Gabriel Duval t one of the- Asso* The entire speech is published in Niles' Register. Vol. XLVII. pp. 106108.
GABnREL DUVAL, an eminent lawyer of Maryland, was appointed by President
Madison an Associate-Justice of the Supreme Court in the year 1811, in place of
Judge Chase. Judge Duval had been long and honorably known to the Maryland bar. In April, 1796, on the promotion of Judge Goldsborough to be chief
Judge of the General Court, Mr. Duval was appointed one of the Associate-Jus



488               LIVES OF THE CHIEF-JUSTICES.
ciate-Justices of the Supreme Court of the United States, resigned his
office in consequence of the infirmities of age, and President Jackson
immediately appointed Mr. Taney to supply the vacancy.       The great
legal ability and high professional character of Mr. Tancy rendered
this appointment eminently and obviously proper.    Since the death of
Wirt he stood confessedly without a rival at the Maryland bar.     An
unblemished personal as well as professional reputation, and a charac
ter whose purity no man, not blinded by political animosity, could venture to assail, might, it was thought, rise above all political considerations, and disarm even the opposition of party spirit itself.  But it
was not so.   The majority of the Senate declined to entertain or act
upon the nomination, for the reason, as was alleged at the time, of the
contemplated new arrangement of the judicial system      as to the circuits.  At the last moment of the session the subject was brought up
and indefinitely po.stponed, a vote which was no doubt intended, and
was understood, as equivalent to a rejection.
tices. This place he retained until 1802, when he accepted the Comptrollership
of the Treasury of the United States. On the passage of the act of the Maryland
Legislature, in 1806, abolishing the General Court, and re-organizing the Court of
Appeals and the County Courts, Judge Duval was successively appointed to the
office of Chancellor, Judge of the Court of Appeals, and Chief-Judge of the
County Courts of the first Judicial District, all of which stations he declined.
Accepting the appointment of Associate-Justice of the Supreme Court of the
United States in 1811, he continued in the discharge of the duties of this place
for a period of nearly a quarter of a century, when, resigning his seat on account
of the infirmities of age, he was succeeded by Philip P. Barbour, on the 15th
March, 1836.
Judge Duval died in 1844. His colleague, Judge Story, presiding at the ensuing session of the Court in the temporary absence of the Chief-Justice, bears the
following honorable testimony to his worth and virtues:  "His urbanity, his
courtesy, his gentle manners, his firm integrity and independence, and his sound
judgment, so eloquently and truly stated at the bar, are entirely concurred in by
all of us who have had the pleasure of knowing him. His revolutionary and
patriotic acts belong to the general history of his country. For myself, having
had the honor of an appointment to this bench on the same day he received his,
we were during his whole judicial life, for about a quarter of a century, cotemporaries, although he was advanced in years far beyond myself; I can, therefore,
bLar my own testimony to the justice of the eulogium which has been pronounced
at the bar upon his social and judicial qualities. They will long be cherished in
our memories with grateful satisfaction."




ROGER B. TANEY                      489
Thus matters stood when Chief-Justice Marshall died, in the summer of 1835. As had been the case on previous occasions, much speculation was indulged in relative to the succession. From cotemporary
newspapers I find the names of Judge  I' Lean, Henry St. George
Tucker, President of the Virginia Court of Appeals, and other distinguished citizens, besides that of Taney, mentioned for the office. But
the President " kept his own counsel," as Washington had done, and
delayed making the appointment until the next meeting of Congress.
In the mean time the rumor that Mr. Taney had been, or was about
to be, appointed during the recess, called out some sharp comments
from the press. I find in the National Intelligencer a communication
signed " Causidicus," in which the writer, after alluding to the fact that
an appointment in the recess of the Senate would be temporary only,
and held at the will of the Senate, or of the President, who might
change his mind, goes on to remark: " No man of delicacy would act
as Judge under such an appointment. I have a high respect for Mr.
Taney as a man and a lawyer, and do not know whether in the present
state of parties, we can expect to obtain a better Chief-Justice, but I do
not believe he will take upon himself the functions of a Judge of the Supreme Court until his nomination shall have been confirmed by the
Senate."  This was certainly a very singular suggestion. Just forty
years before, Washington had appointed Judge Rutledge, in the recess
of the Senate, under precisely similar circumstances, and no one had
ventured to suggest that delicacy required him to abstain from taking
his seat for that cause, and until after his confirmation by the Senate.
But whatever might have been the propriety of a nomination in the
recess, it was not made, and the consequence was that the Supreme Court
was left without a Chief-Justice during its session in the winter of 1836.
On the 28th December, 1835, President Jackson sent in to the Senate
the name of ROGER B. TANEY, for the office of Chief-Justice of the
Supreme Court, and the name of PHILIP P. BARBOUR, of Virginia, for
the office of Associate-Justice. Notwithstanding the political complexion of the Senate had changed, the nomination encountered a
warm and vigorous opposition. At the head of this opposition stood
the acknowledged chiefs of their party, Messrs. Clay and Webster.
The former of these, in particular, with the impulsive ardor of his
nature, labored zealously to defeat the nomination, and signalized his




490              LIVES OF THE CHIEF-JUSTICES.
assaults upon the nominee by an uncommon degree of asperity and
bitterness of remark. I am informed by an eminent member of the
Maryland bar,* who, though of opposite politics, was at the time
warmly in favor of the confirmation of Mr. Taney, that Mr. Clay, not
many years after, with the open and generous frankness of his nature,
made the amende honorable to the Chief-Justice, in a manner creditable alike to the characters of both.  He frankly admitted to Judge
Taney, that at the time of the nomination, he had used some harsh
expressions, and made many unkind remarks in regard to him, which
he sincerely regretted, adding, with a cordial shake of the hand, that
he regarded him as a worthy successor of Chief-Justice Marshall.  It
would have been difficult even for Mr. Clay to have framed a higher
or more delicate compliment.
The nomination of Mr. Taney was not acted upon until the 15th
March, 1836, when it was ratified by a majority of fourteen votes.Soon after, he was sworn into office by Judge Glenn, District-Judge of
Maryland.   He took his seat, for the first, on the bench, in the beginning of the following month, April, at a Circuit Court held in Baltimore, for the District of Maryland.  On this occasion he made some
brief remarks to the Grand Jury, in place of the customary charge,
and for the purpose of giving his reasons for the course he intended to
pursue in dispensing with anything of the kind thereafter: "iHe had
a few words to say to them," he remarked, "not so much in compliance with the usage which had prevailed, of charging grand juries, of
which he disapproved, and would in future dispense with altogether;T
* The late Attorney-General of the United States, Mr. Reverdy Jvjhnson.
t The following is the vote:AYEs.-Messrs. Benton, Brown, Buchanan, Cuthbert, Davis, Ewing (Illinois),
Grundy, Hendricks, Hill, Iubbard, King (Alabama), King (Georgia), Linn,
McKean, Moore, Morris, Nicholas, Niles, Prentiss, Rives, Robinson, Ruggles,
Shepley, Swift, Tallmadge, Tipton, Walker, Wall, Wright-29.
NAYs.-Messrs. Black, Calhoun, Clay, Crittenden, Ewing (Ohio), Leigh, Man
gum, Naudain, Porter, Preston, Robbins, Southard, Tomlinson, Webster.
White-15.
Messrs. Moore and Prentiss, who now voted aye, had voted against Mr. Taney's
confirmation as Secretary of the Treasury.
T This determination was constantly adhered to by the Chief-Justice from that
time onward. It has never been his practice to deliver charges to the grand
juries empannelcd in his courts.




ROGER B. TANEY.                     491
but more for the purpose of giving his reasons for departing from it,
and his present charge would necessarily be brief. He thought the
Court should enter at once with promptness and industry upon the
discharge of its duties, disconnected from all unnecessary forms. The
age had passed by, which called for particular instructions from the
Court; the public mind had become enlightened, and the intelligence
of juries was adequate to the discharge of their duties. The DistrictAttorney was ready to counsel them in all matters of law. It was
unnecessary that the Court should enter the wide field of jurisprudence,
when the attention of the jury would be called but to few infractions
of the criminal laws of the land."  The Chief-Justice then advised the
jury, that it was their duty carefully to examine the testimony laid
before them, and find no bill, except upon the clear conviction of the
guilt of the accused.
Judge Taney took his seat on the bench of the Supreme Court in
January, 1837. Judge Barbour, who had also been confirmed by the
Senate, took his seat at the same time. There were then before the
Court three cases, of very great interest, each of them involving the
question of the validity of a State law, and of course opening the
whole field of discussion as to the conflicting powers of the State and
general governments. These cases had been discussed, but not decided,
in Chief-Justice Marshall's time, and the opinion of that eminent jurist
seems to have been, in each case, that the State law was repugnant to
the Constitution of the United States, and void. In this opinion, Mr.
Justice Story, who dissented from the final judgment of the Court, in
all three of the cases, concurred. No little curiosity was manifested
in regard to these cases, by the profession, as well as by the public
men of that time, who had watched the current of constitutional decisions in the Supreme Court. The great point of interest and anxiety
seemed to be to know whether the Court, as then constituted,
would apply, by judicial construction of the Constitution, the same
strict limits to the powers claimed to be exercised by the States, as
had been established in Marslall's time. The public, however, were
not kept long in suspense. Judgment was rendered in all three cases,
sustainilg the State laws.
The first of these cases was from New York, and is reported under




492               LIVES OF THE CHIEF-JUSTICES.
the title of City of New York vs. Miln.*   The opinion- of the Court
was pronounced by Judge Barbour, and was to the effect, that the
Legislature of New York might, without violating the Constitution
of the United States, pass an act concerning passengers arriving in
vessels in the port of New York, requiring the master of every vessel
arriving, under certain penalties, to make a report, in writing, respecting his passengers, within twenty-four hours after his arrival.  It was
argued by counsel in this case, and so Mr. Justice Story appears to
have thought, in his dissenting opinion, that the principles of the case
fell directly within the decisions in Gibbons vs. Ogden, and Brown vs.
State of Maryland, heretofore noticed.t   The majority of the Court,
however, including the Chief-Justice, were of a contrary opinion,
regarding the act of New York, as not a regulation of commerce, but
of police, and that therefore it was passed in the exercise of a power
which rightfully belonged to the State. Persons, it was said, are not
the subjects of commerce; and, not being imported goods, they do not
fall within the reasoning founded upon the construction of a power
given to Congress to regulate commerce, and the prohibition of the
States from imposing a duty on imported goods.1
* 11 Peters' Reports, 102.
t Ante, pages 412, 424.
t This doctrine is controverted by the cases of Smith vs. Turner, and Norris vs.
City of Boston, which I shall presently notice, reported in the seventh volume of
Howard's Reports. In these cases, which attracted so much attention and interest
at the time, the discussion seems to have passed from the bar into the consultation-room of the Judges, and resulted finally in declaring, by a vote of five judges
to four, that a State law imposing taxes upon the masters of vessels bringing passengers and emigrants into the ports of such States, was contrary to the Constitution of the United States, and void, because the exclusive power to regulate commerce is, by the Constitution, in Congress; and the term commerce, comprehends
the intercourse of persons or passengers. Mr. Justice Wayne, who upon this question sided with the majority of the Court, gives a very interesting history of the
discussion inrthe consultation-room, and the conflicting views of the Judges in the
case of New York vs. Miln, though his recollections of some of the facts differs
from that of the Chief-Justice, as stated by him in his dissenting opinion. Judge
Wayne avers that nothing but the conclusion arrived at by Judge Barbour in
New York vs. Miln, was the judgment of the Court, namely, that the New York
law " does not assume to regulate commerce between the port of New York and
foreign ports," and was therefore constitutional. In other words, that it was a
mere police regulation, but that the Court did not concur in the proposition of




ROGER B. TANEY.                          493
Briscoe vs. The Bank of the Commonwealth of Kentucky,* was the
next of these cases. The validity of the act of the Kentucky Legislature, establishing a bank " in the name and behalf of the Commonwealth of Kentucky," was here drawn in question, under the constitutional provision which restrains the States from emitting bills of credit.
The case had been formerly argued before the Court, and Mr. Justice
Story says, that a majority of the Judges who then heard it, including Chief-Justice Marshall, were decidedly of the opinion that the act
of Kentucky was unconstitutional and void, and that it fell precisely
within the principle adjudged by the case of Craig vs. The State of
Missouri, in  Chief-Justice Marshall's time.t     A  reargument was
ordered, and the case was again discussed with consummate learning
and ability, Henry Clay being one of the counsel in behalf of the
validity of the Kentucky law,T followed by that able and accomplished lawyer, the late Senator Southard, of New Jersey, in opposition.  The   judgment of the Court, pronounced by Mr. Justice
Judge Barbour, that': persons are not subjects of commerce." Four of the Justices out of the seven who heard that case, he says, namely-himself, Story,
McLean, and Baldwin, thought that commerce did comprehend the intercourse of
persons or passengers; and a fifth, Mr. Justice Thompson, declined expressing an
opinion on that point. The case of New York vs. Miln, he thinks. is perfectly consistent with the cases of Gibbons vs. Ogden, and Brown vs. Maryland, and was not
intended to modify, in the slightest particular, what had been the judgments in the
latter cases. These views of Mr. Justice Wayne, should, of course, be considered
in connexion with what is said in the very able dissenting opinion of the ChiefJustice, with whom Judges Daniel, Woodbury, and Nelson concurred.
The late case of Cooley vs. The Wardens of Philadelphia, December term, 1851,
12 Howard's Reports, 300, is another decision upon this vexed question of the
power to regulate commerce. It decides that the grant of this power to Congress does not deprive the States of the power to legislate on the subject of pilots,
and regulate pilotage fees and penalties demanded for neglect or violation. From
this decision Justices Wayne and McLean dissented.
* 11 Peters' Reports, 257.
t Ante, p. 428.
$ The closing remarks of Mr. Clay's speech were deeply impressive: " The
day will be disastrous to this country," he exclaimed, " when this Court shall
throw itself upon the ocean of uncertainty and adopt an interpretation of the
prohibition of the Constitution, which will apply to a constructive bill of credit.
The large and prosperous commercial operations of our country are carried on by
bills of exchange, notes, and bank notes, redeemable in specie, and on which suit




494              LIVES OF THE CHIEF-JUSTICES.
McLean, sustained the validity of the law.    The case of Craig vs.
Missouri, was held not to be authority, on the point that the bills of
the Kentucky Bank were bills of credit within the meaning of the
Constitution, as the decision in that case applied to obligations of an
entirely different character.  Though a State was prohibited from
emitting bills of credit-that is to say, such paper as was denominated
bills of credit, before and at the time of the adoption of the Constitution,-yet there was no limitation in the Constitution, on the power of
a State to incorporate banks.   A State might therefore grant acts
of incorporation for the attainment of those objects which it deems
essential to the interests of society.  Such a power is necessarily incident to sovereignty.
The last, and perhaps most important of these cases, is the celebrated case of Charles River Bridge vs. Warren Bridge.*      It had
been argued at a former term, before Chief-Justice Marshall, and after
being held under advisement by the Court, for a year, was, on a difference of opinion among the Judges, ordered to be reargued.   In this
case, the Chief-Justice delivered his first constitutional judgment-a
judgment in which he sustained,-in opposition to tie powerful reasoning of Daniel Webster, who appeared as counsel for the plailtiffs,the validity of the Massachusetts' law, incorporating the Warren
Bridge. As the question itself is one of great interest, and the judgment of the Court has been the subject of much criticism, it may be
proper here very briefly to notice this case.
The Charles River Bridge held its franchises under acts of the State
and colonial Legislatures of Massachusetts.   It claimed that these
acts vested in the Company, in perpetuity, an exclusive right of erecting and maintaining a bridge over the Charles River, and receiving
the tolls; and being a grant, or contract, within the meaning of the
may be brought should they not be paid according to their tenor. The credit of
all such bills may be brought into question, should the Court decidce this case
against the defendants. KEEP TO TTIE PLAIN MEANING OF THE THEEt MS OF THE
CONSTrrUTION, and do not seek, BY CONSTRUCTION, to include in it:- prohibitions
such paper as that which is brought into question in this case, and all will be
safe."
* This case is reported at length in the 11th volume of Peters' Reports. comprising about one-third of the entire volume. Over sixty pages are devoted to
the elaborate and very able dissenting opinion of Judge Story.




ROGER B. TANEY.                      495
Constitution, as settled by former decisions of the Court, the Legislature
had no power to impair the obligation of this contract, by authorizing
another bridge, and especially a free one, by the side of the Charles
River Bridge. This the Legislature of Massachusetts had assumed
to do, by incorporating the "proprietors of the Warren Bridge,"
which, after having paid its expenses, within a period not exceeding
six years, was to be surrendered to the State. The Charles River
Bridge filed a bill to obtain an injunction, to prevent the erection of
the Warren Bridge. The decision of the State Court being in favor
of the validity of the law, the case was brought into the Supreme
Court of the United States, on the ground that the act of the Massachusetts Legislature violated the Constitution of the United States,
which prohibits any State from passing laws impairing the obligations
of contracts.
The Chief-Justice delivered the opinion of the Court, sustaining the
validity of the law, and sustaining it, as we conceive, upon the highest
principles of public policy, as well as the most obvious, and indeed
necessary constitutional construction. The plaintiffs' claim, of course,
rested mainly upon that class of cases, noticed in the sketch of ChiefJustice Marshall, which hold that a legislative grant is a contract,
such as Fletcher vs. Peck, Terret vs. Taylor, and especially the Dartmouth College case; and therefore the sovereign power of the State is
inhibited from passing any act which, even constructively, may tend to
destroy the value of, or impair, that contract. The extent to which
these doctrines were attempted to be carried, will be seen by reference
to the case of Providence Bank vs. Billings and Pittman, heretofore
cited,* in which it was insisted that a State had no power to tax a
banking corporation chartered by the State. This proposition, however, received no favor at the hands of the Court, whose decision
sustained the sovereignty of the State in the exercise of such a power,
even though it might be used to impair the value of the charter, or
contract. The present case involved a principle entirely similar; and
so, indeed, it is considered in the opinion of the Chief-Justice.  He
regards the Providence Bank case as precisely analagous to the
present, and places his decision on the same grounds.  "The case
now before the Court," he remarks, "is, in principle, precisely the
*.nte, page 426.




496             LIVES OF THE CHIEF-JUSTICES.
same. It is a charter from the State. The act of incorporation is
silent in relation to the contested power. The argument in favor of
the proprietors of Charles River Bridge, is the same, almost in words,
with that used by the Providence Bank; that is, that the power
claimed by the State, if it exists, may be so used as to destroy the
value of the franchise they have granted to the corporation. The
argument must receive the same answer; and the fact, that the power
has been already exercised, so as to destroy the value of the franchise,
cannot in any degree affect the principle. The existence of the power
does not and cannot depend upon the circumstances of its having been
exercised or not."  The power which the State had claimed to exercise
in the Providence Bank case, was the taxing power; the power which
it claimed to exercise in this case, was, the power to make internal
improvements, and regulate public travel; and the Chief-Justice considers them both alike as elements of sovereignty, and as essential to the
existence of government. "A State ought never to be presumed to
surrender this power," he says, " because, like the taxing power, the
whole community have an interest in preserving it undiminished. And
when a corporation alleges, that a State has surrendered, for seventy
years, its power of improvement and public accommodation, in a great
and important line of travel, along which a vast number of its citizens
must daily pass, the community have a right to insist, in the language
of this Court, above quoted,'that its abandonment ought not to be
presumed, in a case, in which the deliberate purpose of the State to
abandon it, does not appear.' 
The opinion of the Chief-Justice, dismissing the bill, was concurred
in by Judges Wayne, Baldwin, and Barbour. Judge McLean concurred in the judgment, on the ground that the Court had no jurisdiction; the State law, in his view, acting not upon the contract, but upon
the property, and Judges Story and Thompson dissented.
The decisions in these cases were of course not suffered to pass
without remark and criticism. An elaborate commentary upon them
appeared in the " New York Review," for April, 1838, in which the
writer, adopting, of course, the doctrines of Judge Story, in his dissenting opinions, handles the judgments of the Supreme Court with no
little severity.  "In reading these decisions," he remarks, "we perceive at once an altered tone, and a narrower spirit, not only in Chief



ROGER B. TANEY.                      497
Justice Taney, but even in some of the old associates of Chief-Justice
Marshall, when they handle constitutional questions. The change is
so great, and so ominous, that a gathering gloom is cast over the
future. We seem to have sunk suddenly below the horizon, to have
lost the light of the sun, and to hold on our way per incertam lunem
sub lace malzgna."  One can scarcely refrain from a smile at the evident
earnestness with which the writer expresses his desponding fears and
doubts. The reflections that these decisions gave rise to, were, to his
mind, of the most painful character, inducing, he says, the conviction
that the Constitution was seriously impaired; that the clause restraining a State from passing any law impairing the obligation of contracts,
was essentially expunged from the Constitution, so far as concerns legislative grants; that the grant to Congress of power to regulate commerce, was impaired; and that the prohibition, that "no State shall
emit bills of credit," was in effect repealed; and the writer's dismal
apprehensions are summed up with this sad reflection: "In short,
when we consider the revolution in opinion, in policy, and in numbers,
that has recently changed the character of the Supreme Court, we
can scarcely avoid being reduced nearly to a state of despair of the
Commonwealth!"
These apprehensions were, in some degree, shared by others, and
even by Judge Story himself, who was so much dissatisfied with the
decisions of the cases referred to, that he was upon the point of resigning his seat on the bench. Writing to Judge McLean, he says:
" There will not, I fear, ever, in our day, be any case in which a law
of a State, or of Congress, will be declared unconstitutional, for the
old constitutional doctrines are fast fading away, and a change has
come over the public mind, from which I augur little good. Indeed,
on my return home, I came to the conclusion to resign. But my
friends have interposed against my intention, and I shall remain on
the bench, at least for the present."* Story remarks, in this same
letter, that the opinion delivered by the Chief-Justice, in the Bridge
* 2 Story's Life and Letters. It may be added that Judge Story's chagrin
arose mainly from the decision in the Bridge case, and that it was entirely disconnected from anything like personal feeling toward the Chief-Justice and the
majority of the Court. In a letter written during the same term he remarks:
"The Judges go on quite harmoniously. The new Chief-Justice conducts himself
with great urbanity and propriety," &c.
32




498             LIVES OF THE CHIEF-JUSTICES.
case, was not deemed satisfactory, and that a great majority of the
ablest lawyers in Massachusetts were against the decision of the Court.
This no doubt was so, and he might have added, that able lawyers
elsewhere, as had been, and is, and always will be the case in the
decision of all delicate and important questions of constitutional law,
differed in opinion in regard to the decision.* It is thought unnecessary,
however, now to vindicate the propriety and correctness of that judgment. It has been generally acquiesced in, and, I believe, approved,
by some of the best legal minds in the country. It might very well
be, that the position of Judge McLean was entirely correct, and that
the case on the merits was with the plaintiffs; it might be, that Judge
Story was also correct, when he stated in one of his letters, that " a
case of grosser injustice, and more oppressive legislation, never existed;" and yet all this had really very little to do with the merits of the
question as it was presented on the record. That question was,
whether, even admitting the State law to have been oppressive and
unjust, and an interference with vested rights, the Federal tribunals
could annul it, it being conceded that this could not be done, under
former decisions of the Court, unless the act incorporating the Warren
Bridge should be deemed a violation of the contract implied in the
legislative grants to the Charles River Bridge. This question was
met and decided in the negative. Indeed, the time seemed to have
come, when it was absolutely necessary to assign some further limit to
this doctrine of implied contract in legislative acts-as had once before
been done in the Providence Bank case-a doctrine which, pushed to
its last consequences, would absolutely prohibit a State Legislature
from authorizing the construction through its territory of two collateral turnpikes, or lines of canal, and perhaps from passing general acts
for the incorporation of bridge or railroad companies, such as may
now be found on the statute-books of some of the StaLtes. On this
point, the reasoning of the Chief-Justice is so clear and pointed, that
it is not easy to see what answer can be given to it. "If this Court
should establish the principles now contended for, what is to become
* Even Chancellor Kent expresses his dissatisfaction in a letter to Story, adding, "I have lost my confidence and hopes in the constitutional guardianship and
protection of the Supreme Court.'- 2 Story's Life and Letters, 270. The Chancellor, it will be remembered, was not satisfied with the decision of Chief-Justie
AMarihall in Gibbons vs. Ogden, which over-ruled his own judgment.




ROGER B. TANEY.                    499
of the numerous railroads established on the same line of travel with
turnpike companies, and which have rendered the franchises of turnpike corporations of no value? Let it once be understood that their
charters carry with them these implied contracts, and give this unknown and undefined property in a line of travelling, and you will
soon find the old turnpike corporations awakening from their sleep,
and calling upon this Court to put down the improvements which have
taken their place. The millions of property which have been invested
in railroads and canals, in lines of travel which had been before occupied by turnpike corporations, will be put in jeopardy. We shall be
thrown back to the improvements of the last century, and obliged to
stand still until the claims of the old turnpike corporations shall be
satisfied, and they shall consent to permit these States to avail themselves of the light of modern science, and to partake of the benefit of
those improvements which are now adding to the wealth and prosperity, and the convenience and comfort, of every other part of the
civilized world."
The judicial opinions and decisions of Chief-Justice Taney are collected in the last six volumes of Peters' Reports, and the fourteen volumes of Howard's Reports of the Supreme Court.     They comprise altogether a collection of which any jurist might have reason to
be proud.  It will, of course, be impossible to do more in this place
than barely to glance at a few of the more important and interesting
of these cases, and in making my selections I shall confine myself
mainly to that class of cases which involve the decision and settlement
of questions of constitutional law.
One of the most interesting of these questions was that which arose
at the very next term after the decision in the Charles River Bridge
case, in the controversy between Rhode Island and Massachusetts,
relative to the boundary line between these States.  This case
attracted much attention at the time, both on account of the novelty
of the question, and the character of the parties litigant. The State
of Rhode Island had summoned the State of Massachusetts to the bar
of that " more than Amphictyonic Council"-the Supreme Court.
The complainant, without claiming any right to the soil to the exclusion of the actual occupants under the laws of Massachusetts,
claimed political sovereignty and jurisdiction over about one hundred




500             LIVES OF THE CHIEF-JUSTICES.
square miles of territory, containing a population of about five thousand souls, which sovereignty and jurisdiction then were, and always
had been, exercised and possessed by Massachusetts. Rhode Island
alleged a mistake in the original location of the boundary line between
the two States, and demanded that this boundary line might now be
established by the judgment of the Court, and that Rhode Island
might be restored to and confirmed in the sovereignty and jurisdiction
of the disputed territory.  The counsel for the State of Massachusetts moved to dismiss the bill for want of jurisdiction; first, because of
the character of the respondent, independent of the nature of the suit;
and secondly, because of the nature of the suit, independent of the character of the respondent. The discussion was conducted with distinguished ability, as it could not well fail to be when such counsel as
Daniel Webster, of Massachusetts, and Samuel L. Southard, of New
Jersey, entered the lists on opposite sides, and grappled in intellectual
combat. The opinion of the Court, delivered by Mr. Justice Baldwin,
was adverse to the motion of Mr. Webster, and sustained the jurisdiction in all points. It may be found at length in the report of the case.*
All the members of the Court who heard the discussion, appear to
have concurred in the result, except the Chief-Justice, who delivered
a dissenting opinion.
This opinion is brief, but clear and pointed.  It discloses, at a
glance, the conceptions entertained by the Chief-Justice in regard to
the jurisdiction of the Court in matters of controversy between States,
and is another evidence of that habitual caution, and it may be said,
repugnance, which he has always manifested in wielding the power of
the Federal judiciary to control or coerce State legislation-a power, it
may be added, which was viewed with the most extreme jealousy in
the earlier years of the republic. He does not doubt the jurisdiction of
the Court, under the Constitution, to hear and determine a controversy
between States, where the suit is brought to try a right of property in
the soil, or any other right which is properly the subject of judicial
cognizance and decision; but this power does not extend to a suit
brought to determine political rights, as he held the present to be.
Sovereignty and jurisdiction are not questions for judicial decision;
for the allegiance in the disputed territory cannot be a matter of pro* 12 Peters' Reports, 713.




ROGER B. TANEY.                          501
perty.  "Contests for rights of sovereignty and jurisdiction," he observes, "between States, over any particular territory, are not, in my
judgment, the subjects of judicial cognizance and control, to be recovered and enforced in an ordinary suit, and are therefore not within the
grant of judicial power contained in the Constitution."   It was therefore his opinion, against the unanimous opinion of his associates, (except Mr. Justice Story, who did not sit in the cause,) that the bill
ought to be dismissed for want of jurisdiction.
It is worthy of remark, that this opinion of Chief-Justice Taney
was so deliberately formed, and so firmly maintained, as to be
made the grounds of his final decision in the cause. After a variety of
proceedings in the case, which are fully preserved in the reports,* the
* The history of this case exhibits the curious and novel spectacle of a controversy between two independent States on a question of sovereignty and territorial jurisdiction, assuming in the Federal Courts all the features of an ordinary
equity suit, and governed throughout not only by the principles, but by the practice, of the English Courts of Chancery. The motion to dismiss the bill, at the
term of 1838, being overruled, Mr. Webster moved, on behalf of Massachusetts,
and obtained leave, to withdraw the plea and appearance which had been entered
for the State. The State of Rhode Island at the same time obtaining leave to
amend her bill of complaint. At the next term Rhode Island asked for a rule on
the State of Massachusetts to answer, which was granted, the time to answer
being extended until the next term. (Rhode Island vs. Massachusetts, 13 Peters'
Reports, 23.)
In conformity with this rule, Massachusetts filed a plea and answer, and the
cause was brought before the Court on the sufficiency of the plea and answer, at
the January term, 1840. (14 Peters, 210.) After a very elaborate and able argument, the Chief-Justice delivered the opinion of the Court, overruling the plea of
Massachusetts, on the ground of its violating the rules of pleading in Chancery
Courts-it being, in technical parlance, multifarious, that is, containing two
separate and distinct defences. Leave was granted to Massachusetts, however, to
demur or answer, and accordingly she came in at the next term with a general
demurrer to the bill, alleging that it contained no case for the interference of the
Court, with the line of division actually existing, as stated in the bill itself, between two independent States, fixed by treaty, compact, or agreement between
them, and acquiesced in for a century or more. After another able and learned
argument, the Chief-Justice delivered the opinion of the Court, overruling the
demurrer on established principles of equity jurisprudence, granting leave to the
defendant, however, to answer the bill. (15 Peters, 233.) Finally, after more than
ten years of legal warfare, the case was brought to argument on its merits, and
Massachusetts, defeated in so many preliminary combats, was signally and com



i02              LIVES OF THE CHIEF-JUSTICES.
matter was at length brought to argument, on the merits, in the winter of 1846. The opinion of the Court, delivered by Mr. Justice McLean, was against the claim of Rhode Island, on the ground that the
alleged mistake in running the boundary line was not clearly established, and even if such mistake were proved, it would be difficult to
disturb a possession of two centuries by Massachusetts under an assertion of right, with the claim admitted by Rhode Island, and other colonies, in the most solemn form. The Chief-Justice, concurring in the
judgment of the Court dismissing the bill, declined expressing any opinion upon the merits of the controversy, but places his decision solely
on the ground of a want of jurisdiction. " We are to determine," he
says, " whether Rhode Island is in this Court entitled to the relief she
asks for  Entertaining upon this subject the opinion heretofore expressed, and which has been confirmed by subsequent reflection, I think
she has not; and that this Court has no constitutional power to decide the question in dispute between the States, and consequently
that the bill ought to be dismissed."*
Chief-Justice Taney delivered the opinion of the Court in the Bank
of Augusta vs. Earle, and the two other cases depending on the same
principle, argued at the same time, at the January term, 1839.t  This
opinion contains some interesting doctrines relative to the nature and
character of corporations created by statute, and the rights and powers
of the corporations of one State acting within the territorial jurisdiction of another. The law of comity among nations, permitting corporations created by one sovereignty to make contracts in another, and
to sue in its courts, is declared to prevail among the several States of
this Union. For, the States of the Union "are SOVEREIGN STATES; and
the history of the past, and the events which are daily occurring, furpletely victorious. The strategy and skill of the lawyers throughout these various
campaigns would certainly lose nothing in comparison with that displayed by
a Frederick or a Napoleon. At all events, we are forced to the reflection, that
whether the Constitution authorizes it or not, this is really a more sensible and
satisfactory, as well as a more equitable way of settling questions of sovereignty
and political differences, than that usually adopted for maintaining the'- balance of power" between the States of Europe.
* Rhode Island vs. Massachusetts. 4 Howard's Reports, G39.
t 13 Peters' Reports, 520.




ROGER B. TANEY.                          503
nish the strongest evidence that they have adopted towards each other
the laws of comity in their fullest extent."
During the session of the Court in 1841, Judge Barbour died.*    On
* The following discriminating tribute to the memory of Judge Barbour is
from the pen of his brother and associate, Mr. Justice Story. A brief sketch of
his life and services may also be found in the introduction to the last volume of
Peters' Reports.
" The family from which Judge Barbour was descended, was one of the oldest
and most respectable in Virginia. His great-grandfather was a merchant of
Scotland, who immigrated to this country. His grandfather was the pioneer and
first settler of the country lying between the eastern base of the Blue Ridge and the
South-west mountains. His father, Thomas Barbour, inherited considerable wealth,
and was a member of the old House of Burgesses, from the then very large
county of Orange. He was one of those who, in 1769, signed the'Non-Importation Act' between this country and Great Britain. After the formation of the
Union, he was elected to the Legislature. Richard Henry Lee, in a letter to his
brother, Arthur Lee, bore testimony to his worth, to the effect,'that he was glad
that Thomas Barbour was in our State Councils, for he was a truly intelligent and
patriotic man.'
" On the maternal side, as his name indicates, Judge Barbour was related to
the Pendleton family, his grandmother having been the aunt of the distinguished Judge Pendleton. Philip Pendleton Barbour was born on the 25th of
May, 1783. Owing to his great hospitality, and a long series of disasters, his
father was unable to afford him that liberal education which his talents and early
promise would have justified. He was, however, sent early to school, where he
soon developed many of those qualities for which he was afterwards so justly distinguished. He exhibited great aptitude for the acquisition of languages; and,
with a correct taste and strong memory, sought out and retained through life the
beauties of the Greek and Roman classics. Even in the performance of the tasks
of a country school, he manifested that precision of information and depth of
research, which, on a broader theatre, and carried to higher subjects, won for him
a wide-spread and enduring reputation. He remained at school until the end of
1799. During the early part of 1800 he studied law at home; but, in October,
he determined to visit Kentucky, where, under great difficulty and embarrassment, he commenced the practice of law. In the summer of 1801, lie yielded to
the persuasions of his friends to return to Virginia; and, having borrowed the
necessary funds, spent one session at William and Mary College. In 1802, he
resumed the practice of law in Virginia. In October, 1804, he was united to
Frances T. Johnson, daughter of Col. Benjamin Johnson, of Orange county, Virginia. During the next eight years he applied himself unceasingly to his profession. In 1812 he was elected to the Assembly, where he continued two sessions.
In 1814, he was elected to Congress, where he continued until 1825. While
there, he was chairman of the Naval and Judiciary Committees; and in 1821,




504               LIVES OF THE CHIEF-JUSTICES.
the opening of the Court after the adjournment caused by this event,
the Attorney-General, Mr. Gilpin, presented the proceedings of a
meeting of the bar on the occasion of the death of Judge Barbour,
was chosen Speaker of the House of Representatives. About the year 1825,
the University of Virginia went into operation. He was offered the professorship of law in that institution, and was pressed by Mr. Jefferson to accept it.
He refused this station, however, and was appointed a Judge of the General
Court of Virginia. In 1827, at the written request of a majority of his old
constituents, he resigned his seat on the Bench, and was reelected, without
opposition, to Congress. In 1829, together with the illustrious Madison, he was
chosen to represent the county of Orange in the convention, called to amend the
Constitution of Virginia. Ile presided over the deliberations of this body in a
manner which elicited the approbation of its members. He was also president of
the Anti-Tariff Convention, which met in Philadelphia. In 1830, he retired from
the practice of a profession which had yielded him considerable wealth, and of
which he had been one of the brightest ornaments, and accepted the station of
Federal Judge for the eastern district of Virginia. The chancellorship was offered to him and declined; as was also the post of Attorney-General. He refused
the nomination for a seat in the Court of Appeals, the Gubernatorial Chair, and
the Senate of the United States. As Federal Judge, he won new honors, and
showed himself worthy of the high and enviable station to which in 1836 he was
called, that of Associate-Judge of the Supreme Court of the United States.
Having thus reached the height of the profession which he had chosen, he was unweariedly striving, with a virtuous ambition, to win that fame which great ability
can only give when joined with pure principles, when death cut him off in his
useful career, and robbed our country of one of its most distinguished sons.
"It remains for us to take a brief notice of the professional attainments and
judicial character of Mr. Justice Barbour. It has been already seen that no inconsiderable portion of his life was employed in active political duties and pursuits,
which if not incompatible with, are (to say the least) by no means favorable to the
cultivation of juridical knowledge, or to found a solid reputation in the law. He
did not, however, at any time relax his vigilance in his professional studies, or become indifferent to professional success. On the contrary, he had the ambition to
acquire all the knowledge which might be useful in his practice at the bar, and
the persevering firmness to surmount every intervening obstacle. His mind was
in a remarkable degree acute, sound, and discriminating, inclining to subtilty in
disquisition, but not misled by it. He was earnest, candid, patient, and laborious
in all his investigations; quick to discern the real points and merits of a case;
but slow in arriving at his own conclusions. His talents were of a high order;
but he was distinguished less for brilliancy of effort, than for perspicacious, close,
and vigorous reasoning. He sought less to be eloquent than to be accurate;
less to persuade by declamatory fervor, than to convince by clear and logical




ROGER B. TANEY.                         505
and  moved that they be entered on record.       Chief-Justice Taney
responded in the following appropriate and affecting remarks: "I
speak in the name of the Court, and by, its authority, when I say
that we have scarcely yet recovered from the unexpected blow which has
fallen upon us. Our deceased brother, for weeks past, has been daily
with us in the hall, listening to the animated and earnest discussions
which the great subjects in controversy here naturally produce; and
he has been with us, also, in the calmer scenes of the conference room,
taking a full share in the deliberations of the Court, and always listened to with the most respectful attention. It was from one of these
meetings, which had been protracted to a late hour of the night, that
we all last parted from him apparently in his usual health; and in the
morning we found that the associate whom we so highly respected,
and the friend we so greatly esteemed, had been called away from us,
and had passed to another, and we trust a better world. The suddenness of the bereavement, the character of the Judge we have lost, and
his worth as a man, made it proper to suspend the business of the
Court until to-day. The time was necessary, not only to pay the
honors due to his memory, but to recollect and fit ourselves for
renewed labors.
"Judge Barbour was a member of this Court but a few years;
yet    he has been long enough here to leave behind him, in the published
deduction. The learning, therefore, that he brought to the discussion of every
cause, was pertinent, exact, and illustrative. It had point and force, and not
merely remote or loose analogies to give it effect. When he was elevated to the
Bench, he felt a deep and conscientious sense of his new duties; and was solicitous to master all the learning appropriate to discharge them in the best manner;
and especially, after his appointment to the Bench of the Supreme Court, he devoted his leisure, with strenuous diligence, to attain all the various knowledge
demanded for eminence in that station. Few men ever labored with more entire
success in such a noble pursuit. During his brief career in that Court, he widened
and deepened the foundations of his judicial learning to an extraordinary extent;
his reputation constantly advanced, and his judgments were listened to with increased respect and profound confidence. If he had lived many years with good
health, he could not have failed to have won the highest distinction for all those
qualities which give dignity and authority to the Bench. It might be truly said
of him, that he was not only equal to all the functions of his high station, but
above them-par negotiis, et supra —. His country has lost by his death a
bright ornament, and a pure and spotless patriot."




506             LIVES OF THE CHIEF-JUSTICES.
proceedings of the Court, striking proofs of the clearness and vigor of
his mind, and of his eminent learning and industry. But those only
who have been intimately associated with him as members of the same
tribunal, can fully appreciate the frankness of his character, and the
singleness ani purity of purpose with which he endeavored to discharge his arduous duties. By those who have thus known him, his
memory will always be cherished with the most affectionate remembrance; and we will cordially unite with the bar in the honors they
propose to pay his memory."
Judge Barbour, it will be recollected, came to the bench at the
same term with the Chief-Justice; and his death was the first that
had occurred since Judge Taney had taken his seat. He was succeeded by Mr. JUSTICE DANIEL, of Virginia, who is still a member of
the Court. It may be here properly remarked, that by the act of
Congress of March, 1837, two additional justices were added to the
Court, making the whole number nine, instead of seven. Under this
act Mr JUSTICE CATRON, of Tennessee, and Mr. JUSTICE MCKINLEY, of
Alabama, were appointed, and took their seats at the session of 1838.
The latter gentleman having recently died, his place has been filled by
the appointment of Mr. JUSTICE CAMPBELL, of Alabama, now the
junior Judge on the bench, a gentleman who brings to the high station he occupies, an exalted reputation for learning and ability, and
who bids fair to do honor to a tribunal that can point to such names
on the roll of its members, as a Washington, a Livingston, a Story, a
Thompson, and a Woodbury.
I may also here properly notice the few other changes made in the
Court during the period of Chief-Justice Taney's service. SAMUEL
NELSON, for many years Chief-Justice of the Supreme Court of New
York, a name well and honorably known in the judicial history of a
State whose judges, in point of character, learning, and ability, may
claim to rank with those of any other State in the Union, was appointed to succeed the venerable SMITH THOMPSON, on the 13th February, 1845. That eminent and enlightened statesman, and sound
constitutional jurist, LEVI WOODBURY, of New Hampshire, succeeded
to, and it is not too much to say, filled, the place of Judge Story, by
appointmeqt of President Tyler, 20th September, 1845. Dying a
few years after, BENJAMIN R. CURTIS, of Massachusetts, was appointed




ROGER B. TANEY.                      507
to succeed him, on the 27th January, 1852. ROBERT C. GRIER, of
Pennsylvania, was appointed on the 4th August, 1846, in place of
Judge BALDWIN, deceased. Both Justice Grier and Justice Curtis, are
still members of the Court.
The session of 1841 was memorable for the discussion and decision
of several cases of great magnitude and interest. Among them were
the Florida land claim, reported under the title of Mitchell vs. United
States;* the case of the Amistad,t in which the venerable ex-President Adams, after a period of nearly forty years, reappeared at the
bar of the Supreme Court as one of the counsel;t and the case of
Groves vs. Slaughter,~ on the determination of which, it is said, more
than three millions of dollars depended-a case which, says Judge
McLean, was " argued with surpassing ability on both sides," as no
one will doubt, who recollects that the counsel for one of the parties
were Attorney-General Gilpin, and Senator Walker, of Mississippi,
and for the other, Clay, Webster, and Jones. I shall not dwell upon
these cases, as the Chief-Justice did not deliver the judgment of the
Court in either of them. It may be observed, however, that in the
one last mentioned, an important question of constitutional law was
discussed, namely, whether the grant of power to Congress to regulate
commerce among the States, vests in Congress the power to regulate
the traffic in slaves among the different States; and if so, whether it
does not carry with it an implied prohibition on the States from making any regulations on the subject;-but the question was not adjudicated, the decision being placed on other grounds.
At the same term of the Court, a case from New Jersey was brought
to argument, which attracted great attention at the time, both on
account of the novelty of the claim, and the immense value of the
interests depending on its decision. The territories and government
of East Jersey, originally held by the Duke of York, by grant from
Charles II., King of England, became subsequently vested in twenty* 15 Peters' Reports, 52.
t 15 Peters' Reports, 518
t Judge Story, in one of his private letters, speaks of the " extraordinary argument " of Mr. Adams in this case; adding —" extraordinary I mean for its power,
for its bitter sarcasm, and its dealing with topics far beyond the record and points
of discussion."
~-15 Peters' Reports, 450.




508             LIVES OF THE CHIEF-JUSTICES.
four persons, called the East Jersey proprietors, who having surrendered up to the crown the powers of government, remained the
admitted proprietors and owners of the entire soil and territory of East
Jersey. This proprietary body survived the troubles of the revolution,
and has continued to exist, from that day to the present, in unbroken
succession, under its ancient organization, and recognized by the laws
of the State, as the undisputed owner of all vacant and ungranted
lands within the territorial limits of East Jersey. Under a proprietary grant of a certain portion of the bed of the Raritan river and
bay, the grantee, who claimed an exclusive right of fishing for
oysters, under his grant, brought an action of ejectment against
a defendant, claiming a similar right under a lease from the
State. On the trial, in the Circuit Court, Judge Baldwin sustained the proprietary title, against that of the State. And the
defendant thereupon brought the case into the Supreme      Court.
It was deemed to be of so great consequence, that the Legislature
of New Jersey passed a special act, directing the Governor of
the State to attend the sittings of the Court, at Washington, on the
argument. The most eminent and able counsel were employed on
both sides, and the arguments, as may be seen from the report of the
case,* were characterized by the highest degree of professional learning and ability. Judge Barbour's death prevented a decision of the
question at this term, and a reargument was ordered. This took place
at the session in January, 1842.  Mr. George Wood, and General
Wall, then one of the senators from New Jersey, appeared for the
State; and Mr. Ogden, and Mr. Silas Wright, then a senator in
Congress from New York,t for the proprietary claimant.  The Chief* Martin et al. vs. Waddell. 16 Peters' Reports, 367.
t This, I believe, was the first, and, I am not sure, but the only argument, ever
made by that eminent citizen at the bar of the Supreme Court. It was prepared
with extraordinary and most laborious care and industry, and like every other
product of the mind of its author, was clear, compact, and logical. It was not
regarded at the time, however, as one of his happiest efforts, and from the closeness with which he confined himself to his brief, it was evident that he himself
felt the embarrassment of being suddenly transferred from the Senate Chamber to
the judicial forum. Mr. Wright was not engaged in the first argument. The
counsel for the proprietors on that occasion were Southard, of New Jersey, and
Sherwood, of New York.




ROGER    B. TANEY.                      509
Justice delivered the opinion of the Court, which was adverse to the
proprietary title. The navigable waters of New Jersey, he held,
passed to the Duke of York, and to the proprietors, but they passed
as part of the prerogative rights annexed to the political powers conferred on the Duke, and not as private property, to be parcelled
out and sold to individuals; and the right of fishery was a part of
these prerogative rights, or, in other words, one of the royalties
incident to the powers of government.   When the proprietors surrendered up the government, the navigable waters of New Jersey went
back to the crown; and when, at the revolution, the people of New
Jersey took possession of the reins of government, the prerogatives
and regalities, which belonged either to the crown or the parliament,
became immediately and rightfully vested in the State.   The proprietary claim to an exclusive fishery, in the navigable waters of New
Jersey, was therefore declared to be unfounded, and the judgment of
the Circuit Court reversed. Mr. Justice Thompson, with whom Judge
Baldwin concurred, delivered a very able and closely written dissenting
opinion.*
In the well know Pennsylvania slave case,t argued and decided at
this term, Mr. Justice Story had the opportunity, which, a few years
before, h hhad feared would never again occur in his time, of declaring
a State law unconstitutional and void, and that too, by the unanimous
* The decision in this case was thought not to have settled the question as to
the proprietary title, orfee, in the soil of the navigable waters of New Jersey, but
merely that a right of exclusive fishery did not exist in the proprietors. Accordingly, to test this question, an action of ejectment for certain city lots at Jersey
city, reclaimed from the bed of Hudson River below low-water mark, was afterwards commenced under the proprietary title against the persons in possession.
This case was brought to argument at the late session of the Supreme Court. The
judgment of the Court, pronounced by the Chief-Justice, was adverse to the proprietary claim, it being held that the former decision was substantially a disposition of
the present question, and that the fee of the soil, as well as the public uses of the
navigable rivers of New Jersey had passed out of the proprietors to the Crown,
and at the revolution had passed back from the Crown to the people of New
Jersey. The author speaks with knowledge of the facts of this case, as he was
one of the counsel engaged on the argument in behalf of the proprietary title. It
will be found reported in the 15th Vollume of Howard's Reports, under the title
of Den ex dem Russell v2. The Associates of the Jersey Company.
t Prigg vs. Commonwealth of Pennsylvania. 16 Peters' Reports, 543.




510            LIVES OF THE CHIEF-JUSTICES.
judgment of the Court. It is to be remarked, however, that while all
the Judges agreed in the actual decision rendered in the case, namely,
that the Pennsylvania law was unconstitutional, yet the Chief-Justice,
and two or three of his associates, did not concur in the reasonings and
principles laid down in the prevailing opinion of the Court. The case
was this: Prigg, a citizen of Maryland, had taken a fugitive slave, by
force and violence, from the State of Pennsylvania,; without the certificate required by the act of Congress, of 1793, and brought such
slave to the State of Maryland. For this act, Prigg had been indicted
under a law of Pennsylvania, entitled, " An act to give effect to the
provisions of the Constitution of the United States, relative to fugitives from labor, for the protection of free people of color, and to prevent kidnapping;" one section of which act provided, that the taking
and carrying away of any negro or mulatto, by force and violence, &c.,
out of the State, should be deemed a felony, punishable by fine and
imprisonment. The act which had been passed by the Pennsylvania
Legislature, for the purpose of meeting the supposed wishes of Maryland, on the subject of fugitive slaves, provided a mode for their rendition by the State authorities. The fugitive slave had been brought
before the Pennsylvania magistrate, by virtue of the law, but that
functionary refused to take cognizance of the case, and Prigg thereupon, without further license or warrant, carried her and her children
away into Maryland. By an amicable arrangement between the two
States, judgment was entered against Prigg in the Court below, and
the case was thereupon brought to the Supreme Court of the United
States, by the cooperation and sanction of both States, in the most
friendly and courteous spirit, with a view to have the grave question
presented by it, finally adjudicated.
The opinion delivered by Judge Story, with whom Mr. Justice
Wayne and some other members of the Court concurred, maintained,
among other things, that the Pennsylvania law was unconstitutional,
because the section of the Constitution which provides that fugitives
" shall be delivered up," places the remedy exclusively in Congress,
and therefore that the States are prohibited from passing any law on
the subject, whether Congress had or had not legislated on it. From
this proposition, the Chief-Justice, while concurring in the main
with the conclusions arrived at by Judge Story, dissents.  He holds




ROGER B. TANEY.                     511
that not only are the States not prohibited from legislating on the subject, but, on the contrary, it is enjoined on them  as a duty to protect
and support the owner when he is endeavoring to obtain possession of
his property found within their respective limits. Upon this point he
expresses these views:
"The language used in the Constitution does not, in my judgment,
justify the construction given to it by the Court. It contains no words
prohibiting the several States from passing laws to enforce this right.
They are in express terms forbidden to make any regulation that shall
impair it. But there the prohibition stops. And according to the settled rules of construction for all written instruments, the prohibition
being confined to laws injurious to the right, the power to pass laws to
support and enforce it, is necessarily implied. And the words of the
article which direct that the fugitive " shall be delivered up," seem evidently designed to impose it as a duty upon the people of the several
States to pass laws to carry into execution, in good faith, the compact
into which they thus solemnly entered with each other. The Constitution of the United States, and every article and clause in it, is a part
of the law of every State in the Union, and is the paramount law.
The right of the master, therefore, to seize his fugitive slave, is the law
of each State; and no State has the power to abrogate or alter it.
And why may not a State protect a right of property acknowledged by
its own paramount law?  Besides, the laws of the different States, in
all other cases, constantly protect the citizens of other States in their
rights of property, when it is found within their respective territories;
and no one doubts their power to do so.  And in the absence of any
express prohibition, I perceive no reason for establishing, by implication, a different rule in this instance; where, by the national compact,
this right of property is recognized as an existing right in every State
of the Union."
Judges Thompson and Daniel also delivered opinions to the same
effect, namely, that the constitutional power vested in Congress was
not exclusive; nor did it prohibit the States, in the absence of a law of
Congress, from legislating to protect and enforce this right guaranteed
by the Constitution. They concurred, however, in the judgment of
reversal, on the ground that the act of Congress of 1793 was a coll




512             LIVES OF THE CHIEF-JUSTICES.
stitutional exercise of power, and that the Pennsylvania law conflicted
with it, and was therefore null and void.
At the session of 1843, Chief-Justice Taney delivered the judgment
of the Court in the case of Bronson vs. McKinzie, et. al.,* annulling and
declaring void a law of the State of Illinois, on the ground that it
violated the provision of the Constitution which prohibits a State from
passing any law impairing the obligation of contracts. The act of the
Illinois Legislature, passed subsequent to the contract, provided that
the equitable estate of a mortgagor should not be extinguished for
twelve months after a sale under a decree in Chancery, and that there
should be no sale unless two-thirds of the amount at which the property has been valued by appraisers should be bid therefor. Neither
Judge Story nor Judge McKinley was present at this discussion, the
result of which furnished another evidence that the apprehensions expressed by the former were entirely unfounded. The opinion of the
Chief-Justice is a clear, luminous and most able exposition of the law
on this subject, and has generally been regarded by the profession as
entirely satisfactory. Judge McLean dissented, taking the somewhat
subtle, if not technical, distinction, that the State law acted upon the
remedy, and not upon the contract.
This case was followed at the next term of the Court by McCracken vs. Hayward, which fully confirmed the decision in Bronson
vs. McKinzie in all its points, re-affirming the doctrine that the valuation and stay laws of Illinois were inoperative upon existing contracts,
and void. The Chief-Justice does not appear to have been present at
the argument and decision of this cause. Very early in the session
he was attacked by severe indisposition, and was prevented from taking
his seat during the remainder of the term, and from participating in
the decision of the very important cases brought on for argument.
Among these may be mentioned the great case of the Girard will, so
elaborately and splendidly argued by Webster and Jones, on the one
side, and by Binney and Sergeant on the other, the opinion in which
was delivered by Justice Story, sustaining the will,-an opinion concurred in unanimously by his brethren, without altering (says Story,
with some appearance of self-satisfaction), " a single sentence as I
* 1 Howard's Reports, 311.
t 2 Howard's Reports, 608.




ROGER B. TANEY.                           513
originally drew it up;" also the celebrated Gaines case, which has excited so great a degree of public interest, not so much perhaps on aecount of the large amount of property involved in the controversy, as
by reason of the romantic nature of the history upon which it turned —
the history of Zulime Carriere, and her daughter, Myra Clark Gaines;*
and also the case of the Louisville, Cincinnati and Charleston Rail
Road Company vs. Letson, which established the very important
principle that a corporation is to be deemed an inhabitant of a
State, capable of being treated as a citizen, for all purposes of
suing and being sued, a principle not only denied by former decisions of the Court, but the opposite of which had been considered
by the profession as too well established to be again unsettled.t
And lastly, the case of Bank of the United States vs. United StatesT
in which the Government was held liable to pay fifteen per cent.
damages as the drawer of a foreign protested bill, under a statute
* Gaines et ux. vs. Chew et. al. 2 Howard's Reports, 619. Another branch of
this interesting case is reported under the title of Patterson vs. Gaines et ux.. 6
Howard, 650; and another under the title of Gaines vs. Relf et al., 12 Howard,
473. The Chief-Justice did not sit in these causes, as a near family relative was
interested in the event. The decision in the last of these cases, at the session of
1851, finally decided the claim adversely to Mrs. Gaines.
t Only four years before, the Supreme Court, in the case of Commercial Bank
of Vicksburgh vs. Slocum, 14 Peters 60, following the cases of Strawbridge vs.
Curtis, 3 Cranch 267, and Bank of the United States vs. Deveaux, 5 Cranch 84, had
decided that a corporation, as such, was not a citizen of the United States; and at
the same term, in Irvine vs. Lowry, 14 Peters 293, it was declared that the decisions had been uniform upon this subject, and must be followed. Mr. Justice
Wayne, who delivered the opinion of the Court in the present case, overruling
these decisions, remarks, however, that the Vicksburgh Bank case was most reluctantly decided on the authority of the two former cases above alluded to, and
that not only were these cases never satisfactory to the bar, but they were also
unsatisfactory to the Court that made them. No one, he adds, questioned them
more than the Chief-Justice (Marshall) himself, who gave these two decisions, and
he repeatedly expressed his regret that they had been made. In a letter of Judge
Story, in which he expresses his satisfaction that the Supreme Court had at last
adopted a more correct rule, he makes a similar remark in regard to Chief-Justice
Marshall, adding that Mr. Justice Washington was also of opinion that these decisions were wrong in principle, as they must be admitted to be inconvenient in
practice.
$ 2 Howard's Reports, 711.
33




514             LIVES OF THE CHIEF-JUSTICES
of Maryland, allowing that amount to the holder of such protested
bill. In this case, the Chief-Justice prepared a carefully considered
dissenting opinion, which will be found in the Appendix to this volume
of the reports. The case had been before him as Attorney-General,
and his opinion then, as now, was, that the Bank had no claim in law
or equity to the damages in question. It is proper here to add that
in a subsequent case decided at the session of 1847,* the Court ruled,
that the Government was not liable to the Bank for these consequential damages. The Chief-Justice, though he withdrew from the bench,
for the reason that he had given an official opinion as Attorney-General, concurred entirely in this judgment of the Court. Judges McLean and Wayne dissented, regarding the question as having been
substantially decided in the former case.
At the session of the Court in the winter of 1845, several cases
involving questions of constitutional law were brought to argument.
Those in which the Chief-Justice delivered the opinion of the Court
are the cases of Kendall vs. Stokes, Searight vs. Stokes, Niel, Moore
& Co., vs. the State of Ohio, and the State of Maryland vs. the Baltimore and Ohio Rail Road Company, all of which are contained in the
third volume of Howard's Reports. The first of these cases was a suit
brought against the Post-Master General for damages, in consequence
of acts which the Court held to be official, but not ministerial acts;
and the principle was recognized that a public officer, acting from a
sense of duty, in a matter where he is required to exercise discretion,
is not liable to an action for an error of judgment.
In the second of these cases the question was, as stated by the ChiefJustice, whether the State of Pennsylvania can lawfully impose a toll
on carriages employed in transporting the mail of the United States
over that part of the Cumberland road which passes litrough that
State. In the judgment of the Court-Justices McLean and Daniel
dissenting-a carriage, whenever it carries the mail of the United
States, must be held to be laden with the property of the United
States within the meaning of the compact between the Federal Government and the State of Pennsylvania, and therefore exempt from
payment of tolls. But the Court did not construe the exemption as
extending to other property in the same vehicle, or persons travelling
* United States vs. Bank of the United States. 5 Iloward's Reports, 382.




ROGER B. TANEY.                    515
in it, unless in the service of the United States, nor to more carriages
than were necessary for the safe and convenient conveyance of the
mail. The case was thought to come within the principle established
in McCulloch vs. the State of Maryland, "that a State Government
has no right to tax any of the constitutional. means employed by the
Government of the Union to execute its constitutional powers."*
Neil, Moore & Co., vs. the State of Ohio, presented a similar question, and the Chief-Justice, in his opinion, carried the rule still farther. Under the compact of surrender between Congress and the
State, it was held that toll could not be charged upon passengers
travelling in the mail stages on the Cumberland road, without being
also charged upon passengers travelling in other stages, and that such
a tax was against the contract, and void.
The case of Maryland, vs. the Baltimore and Ohio Railroad Company, presented the question whether a law of the Maryland Legislature was void on the ground that it impaired the obligation of a
contract. The State had directed a subscription of $3,000,000 to the
Railroad Company, with the proviso that the Company should locate
the road through the towns of Cumberland, Hagerstown, and Boonsborough, or, in default, should forfeit $1,000,000 for the use of Washinton County in Mlaryland, where the two towns last mentioned are
situated. The Company, having assented to the law, refused to locate
the road through these towns, and a suit was accordingly commenced
for the penalty. Su.bsequently the Maryland Legislature passed a law
repealing so much of the act as required the location of the road
through these towns, and remitting the forfeiture of the $1,000,000.
This act, it was alleged, was unconstitutional and void, inasmuch as the
penalty had become due to Washington County by contract. The
Court, however, the Chief-Justice delivering the opinion, ruled otherwise. The original act was not a contract within the meaning of the
Constitution. It was merely a penalty inflicted on the Company as a
punishment for disobeying the law, which the State had a right to release,
the whole scope of the law showing that it was a legislation for State
purposes, and a measure of State policy, which the State had a right
to change at its pleasure; and that neither the County nor any of its
citizens acquired any private interest under it which could be main* See ante, page 402.




516             LIVES OF THE CHIEF-JUSTICES.
tained in a court of justice.  The case was argued with marked
ability by Mr. Sergeant and Mr. Jervis Spencer, and by the AttorneyGeneral, Nelson, and Mr. Reverdy Johnson in opposition.
This was the last term of Judge Story upon the bench of the Supreme Court.  At the opening of the Court at the next session, in the
winter of 1846, Chief-Justice Taney was called upon to perform the
melancholy duty of responding to the announcement of the death of
his eminent associate.  The brief and touching sentences he pronounced on the occasion are beautiful alike for their simplicity, and
their sincerity and their tenderness.
" It is difficult for me," he remarked, in reply to the Attorney-General, who had moved the usual testimonials of respect, " to express how
deeply the Court feel the death of Mr. Justice Story. He had a seat
on this bench for so many years, and was so eminently distinguished for
his great learning and ability, that his name had become habitually
associated with the Supreme Court, not only in the mind of those
more immediately connected with the administration of justice, but in
that of the public generally throughout the Union. He had indeed
all the qualities of a great judge; and we are fully sensible that his
labors and his name have contributed largely to inspire confidence in
the opinions of this Court, and to give weight and authority to its
decisions.
" It is not, however, in this country only, that the name of Justice
Story is respected and honored. His works upon various branches of
jurisprudence have made him known to eminent men wherever judicial
knowledge is esteemed and cultivated; and wherever he is known,
his opinions are quoted with respect, and he is justly regarded as one
of the brightest ornaments of the age in which he lived. But it is
here, on this bench, that his real worth was best understood, and it is
here that his loss is most severely and painfully felt. For we have
not only known him as a learned and able associate in the labors of
the Court, but he was also endeared to us as a man, by his kindness
of heart, his frankness, and his high and pure integrity. We most
truly and deeply deplore his death, and cordially unite with the bar
in paying appropriate honors to his memory.
"The proceedings of to-day will therefore be entered on the records




ROGER B. TANEY                           517
of the Court, as a lasting testimony of our respectful and affectionate
remembrance of our departed brother."
The intercourse between this eminent Judge and the Chief-Justice
was always of the most agreeable character.     Though at times they
differed in opinion toto cilo, and especially upon questions of constitutional construction, yet they habitually cherished for each other feelings of mutual kindness and esteem. Story always spoke respectfully
of the abilities and attainments of Taney, even before the latter came
to the bench.   Further acquaintance ripened into reciprocal esteem.
When, at the close of his career, Judge Story had become dissatisfied with his position on the bench, we find him frankly acknowledging to a friend that his personal intercourse with the Chief-Justice
and his associates had always been pleasant.*     And on his part the
Chief-Justice never failed to express for Judge Story that respect and
esteem, which were so justly due to the virtues and worth, as well as
* Letter to Hon. Ezekiel Bacon. April 12th, 1845:
" I have been long convinced that the doctrines and opinions of the " Old Court"
were daily losing ground, and especially those on great Constitutional questions.
New men and new opinions have succeeded. The doctrines of the Constitution, so
vital to the country, which in former times received the support of the whole
Court, no longer maintain their ascendancy. I am the last member now living of
the old Court, and I cannot consent to remain where I can no longer hope to see
those doctrines recognized and enforced. For the future I must be in a dead
minority of the Court, with the painful alternative of either expressing an open
dissent from the opinions of the Court, or, by my silence, seeming to acquiesce in
them."
Under the influence of these sombre views, Judge Story came to the conclusion
definitely to resign his seat in the Supreme Court, and to fall back on his law professorship at Harvard College, a station which he had occupied for several years;
and with this view he returned from his last term of service at the session of 1845.
His death, however, occurred before he had an opportunity of accomplishing this
design. He died on the 10th of September, 1845, at the age of sixty-six years,
thirty-three of which had been passed in the discharge of his duties of Judge of
the Supreme Court. The Life of Judge Story, in two volumes, by his son William
W. Story, presents a full and complete record of his private, his judicial, and his
professional career. It is marked throughout by a pious, filial, and almost reverential admiration for the character of the man whose memory it embalms; but
this by no means detracts from its rare value as the narrative of a life drawn from
the amplest materials, and illustrated by minute description, as well as copious
detail. The student will find it a book to be read with profit as well as pleasure.




518             LIVES OF THE CHIEF-JUSTICES.
the profound and comprehensive learning, of one of the most illustrious
jurists this country, or the world, has produced.
The Massachusetts, Rhode Island, and New Hampshire License
cases,* reported at January term, 1847, brought before the Court a
constitutional question of great magnitude and interest. The questions in these cases arose under that much-discussed clause of the
Federal Constitution, which vests Congress with power to regulate
commerce. In the first two cases the precise point was, whether a
State might assume to regulate or prohibit the retail of wines and
spirits, the importation of which from foreign countries has been
authorized by act of Congress; and in the last case, whether a State
might prohibit by law the sale of liquor imported from another State,
there being no act of Congress to regulate such importation. in the
decision of these cases the judges unanimously determined that the
laws under review were all valid and constitutional.
In these opinions, however, there appears to be much diversity as
to the principles on which the cases are decided. Six of the judges,
including the Chief-Justice, expressed their views at length, and the
whole subject of the power of Congress over foreign and internal
commerce, and the conflict between the authority of the General and
State Governments is considered, with a copious fullness of argument,
and with an accuracy and closeness of deduction, that leaves very little to be said in any future discussion. I do not propose to notice
any of these arguments except that of the Chief-Justice, which is certainly very able, and, I believe, has generally been regarded as
entirely satisfactory to the profession. No one, I apprehend, can
read it without being satisfied that it places the decision of these
cases-particularly the New Hampshire case-upon true and correct
grounds, if not the only grounds upon which they can permanently
stand.
The Chief-Justice does not deny, but, on the contrary, fully admits
the proposition, that if these State laws were in collision with an act
of Congress, they would be unconstitutional and void. If, in the
Massachusetts and Rhode Island cases, the law had obstructed the
importation, or prohibited the sale of the article in the original cask
* Thurlow vs. Massachusetts, Fletcher vs. Rhode Island, and Pierce et al. vs.
New Hamphire. 5 Howard's Reports, 504.




ROGER B. TANEY.                      519
or vessel, in the hands of the importer, it would have been void; because the importation was permitted by Congress in the exercise of its
constitutional power to regulate foreign commerce. But this he held
was not the case. The State laws were framed to act upon the article
after it had passed the line of foreign commerce into the hands of the
dealer, and had become a part of the general mass of the property of
the State. This, he contended, was precisely the principle recognized
in Brown vs. Maryland, and to which he gave his entire assent.
The New Hampshire case was different. The law prohibited the
sale, in any quantity, without license; and the sale, in that case, had
been made by the importer, in the cask in which the liquor had been
imported from Massachusetts into New Hampshire. The case therefore, in his view, turned upon the question, whether, in the absence of
a law of Congress regulating commerce between the States, all State
laws on the subject are null and void. In other words, whether a mere
grant of power to the General Government, can be construed as an
absolute prohibition to the exercise of any power over the same subject by the States. UTpon this question a diversity of sentiment had
existed am6ng the members of the Court, as was evident in the judgment in Prigg vs. Pennsylvania. The Chief-Justice had there distinctly expressed the opinion, that a mere grant of power to Congress,
was not exclusive, or prohibitory upon the States,* and this doctrine
he not only reiterates, but makes the main ground of his judgment.
" The controlling and supreme power over commerce with foreign
nations, and the several States," he observes, " is undoubtedly conferred upon Congress. Yet, in my judgment, the State may, nevertheless,
for the safety or convenience of trade, or for the protection of the
health of its citizens, make regulations of commerce for its own ports
and harbors, and for its own territory; and such regulations are valid,
unless they come in conflict with the law of Congress. Such evidently.
I think, was the construction which the Constitution universally received at the time of its adoption, as appears from the legislation of
Congress and of the several States; and a careful examination of the
decisions of this Court, will show, that, so far from sanctioning the
opposite doctrine, they recognize and maintain the power of the
* Ante, p. 509. In the Wheeling Bridge case, the dissenting opinion of the
Chief-Justice is placed upon the same grounds. See post.




520             LIVES OF TIIE CHIEF-JUSTICES.
States."*  This construction he believes is legitimately to be drawn
from what was really intended to be decided in Gibbons vs. Ogden, as
well as in Brown rs. Maryland, and is fully and authoritatively sanctioned in the case of Wilson vs. The Blackbird Creek Marsh Company,
heretofore noticed among the cases decided in Chief-Justice Marshall's
time.t
The case of Cook vs. Moffat,$ decided at this term, brought under
review and reexamination, the question of the effect of a debtor's discharge under the insolvent laws of one State, on a contract made in
another State, so much discussed in Chief-Justice Marshall's time, and
which was settled by the decisions in Ogden vs. Saunders, and Boyle vs.
Zacharie.~  The judgment of the Court was in accordance with these
decisions. The Chief-Justice, though acquiescing in that judgment, on
the ground that the question was res adjudicata, expressed his disapprobation of the principle on which the case turned. lie considered
the true doctrine to be, that the bankrupt law of one State, should
receive in the tribunals of a sister State, the respect and comity
which the established usages of civilized nations extend to the
bankrupt laws of each other.
At the same term, the very important Admiralty case of Waring
vs. Clark, 1[ was decided, in which the attention of the Court was, for
the first time, called to the question, whether the Admiralty jurisdiction, conferred by the Constitution, was to be limited to, and interpreted by, what were cases of Admiralty jurisdiction in England, when
the Constitution was adopted by the States of the Union; or, whether
that jurisdiction in a public navigable river extended beyond the ebb
and flow of the tide. The collision, in this case, had taken place on
the Mississippi River, near the bayou Goulah, and there was much
doubt whether the tide flowed so high. The majority of the Court,
however, thought there was sufficient proof of tide there, and consequently it was not necessary to consider whether the Admiralty jurisdiction extended higher. This subject will presently be noticed again,
* In these views the Chief-Justice is sustained by the opinions of Judges Catron,
Daniel, Woodbury and Nelson.
t Ante, p. 425.
t 5 Howard's Reports, 295.
~ Ante, p. 399-400.
11 5 Howard's Reports, 441.




ROGER B. TANEY.                       521
when I come to speak of the case of the Genesee Chief, in which the
Chief-Justice delivered the opinion, asserting the bold and comprehensive doctrine, that the Admiralty power of the Court extends beyond
the flow of the tide in public navigable waters, and over the great
fresh-water lakes.*
I pass over several important cases, at this and the next ensuing
term, and come down to the session of the Court in 1849, which
brought to final argument and adjudication, the New York and Boston
Passenger cases.t  They arose upon the same constitutional provision
involved in the discussion of the Licence cases which I have just
noticed, namely, that which vests in Congress the power to regulate
commerce. The argument involved a review of the same principles
which were examined in the former discussions on this subject, and
the report of the cases occupies no inconsiderable portion of the entire
volume which contains the decisions made at the session of 1849.
These celebrated cases, either one or both, had been under argument
at four several terms of the Court, commencing with the argument of
Smith vs. Turner, at the December term, 1845. The question presented by. the record in that case, was, whether a law of the State of
New York, laying a tax upon the masters of vessels arriving from a
foreign port, of one dollar for every steerage passenger, and one dollar
and fifty cents for every cabin passenger, and upon the masters of
coasting vessels, of twenty-five cents for each passenger such vessels
might contain, for "hospital moneys," was repugnant to the Constitution of the United States, and void. The Massachusetts case, Norris
vs. the City of Boston, turned upon a similar question.
The decision of these cases presented these two distinct points
for adjudication.  1st. Is the power to regulate commerce, exclusively
vested in Congress? 2d. Is a tax upon persons or passengers, a regu* The case of Waring vs. Clark, it may be added, is distinguished for the extraordinary and singularly powerful dissenting opinion of Judge Woodbury, in
which, upon both reason and authority, he denies that the Admiralty jurisdiction
extends within the body of a county even upon tide waters-an opinion whose
learning and research, whose close and vigorous logic, and whose bold and original, and comprehensive, deductions, leave it in doubt whether the capacity of its
author as a jurist was not greater than a long life of public service had proved it
to be as a statesman.
t Smith vs. Turner, Norris vs. City of Boston. 7 Howard's Reports, 283.




522             LIVES OF THE CHIEF-JUSTICES.
lation of commerce? Both of these points, it was claimed, on the
argument, had been heretofore settled by repeated and solemn judgments of the Court. In support of the affirmative of the first proposition, the decisions in Brown vs. Maryland, and Gibbons vs. Ogden,*
were confidently cited. To sustain the negative of the latter proposition, the authority of the city of New York vs. Miln, was, with equal
confidence, invoked. The result of the deliberations of the consultationroom, and the judgment of the Court, seem to have left both questions
in an uncertainty still more perplexing, and an obscurity still more
profound, than when the discussion began. The State laws, it is true,
were declared null and void, by the votes of five Judges, against four.t
And thus far there was a decision of the cases; but everything else
was left unsettled. Such was the diversity and conflict of views even
among the Judges who concurred in the prevailing opinion, that the
reporter himself seems to have been perplexed, and very frankly declares that " there was no opinion of the Court, as a Court."
The Chief-Justice led off on the other side in a dissenting opinion,
which met the full concurrence of his brethren, Judges Daniel and
Nelson, and in which he was most powerfully sustained by Judge
Woodbury, in one of those masterly, comprehensive, and elaborate
constitutional arguments upon which the fame of that eminent man,
as a jurist, rests-the most elaborate, perhaps, and, some have thought,
the ablest ever delivered by him while upon the bench-one of those
full, and rigid, and exhausting arguments, whose object is not to
demonstrate a theory merely, but to establish a principle, and literally
to overwhelm and annihilate what he regarded as the errors which
combated it.
The opinion of Judge Taney is comprised within thirty pages of the
reported case, and is well worthy of attentive and careful study by
any one desirous of becoming master of the principles involved in the
discussion. I shall not, of course, attempt to give even an analysis
of it in this place. It is sufficient to remark, that he adheres throughout to those same constitutional views and constructions which he had
expressed on previous occasions, and among them, that the power to
regulate commerce is not exclusive in Congress; and also, that persons,
* tnte, p. 412.
f For Reversal-Judges McLean, Wayne, Catron, McKinley, and Grier.
For Affirmance-The Chief-Justice, and Judges Daniel, Nelson, and Woodbury.




ROGER B. TANEY.                     523
not being the subjects of commerce, a tax upon passengers or emigrants
could not be considered a commercial regulation. The latter proposition
had apparently been directly held in the case of City of New York vs.
Miln, the authority of which, upon this point, was now attacked in
the conference-room of the Judges, as it had been at the bar. Mr.
Justice Wayne, who sat in that case, denied that it established any
such principle, or that the expression there used was sanctioned by the
majority of the Court; and in support of this view he gives a statement of his own recollections of the circumstances connected with the
opinion delivered in that case. The Chief-Justice differs from Judge
Wayne somewhat in these recollections, and insists that the dictum in
City of New York vs. Miln, was to be regarded as the judgment of a
majority of the Court; but as I have already alluded to this subject
on a previous page, it is unnecessary, in this place, to pursue it further.*
The cases of Luther vs. Borden et al, t decided at this term, brought
before the Court for discussion some of the gravest questions which
can possibly arise relative to political rights, and the origin and ground
of government. These cases grew out of the unfortunate controversy
in Rhoce Island in regard to the " People's Constitution," framed, as
it was admitted, without the forms of law, but, as it was claimed, by
the votes of a majority of the people of the State. I allude to these
cases not for the purpose of tracing the origin and progress of the
controversy, or of reviewing the discussions which grew out of it; but
for the purpose barely of citing another instance going to show the extreme repugnance of Chiqf-Justice Taney in assuming an authority, or
extending the jurisdiction of the Court beyond those well defined and
strict limits which the Constitution had marked out. Upon a former
occasion, in the case of Rhode Island vs. Massachusetts,t we have seen
him standing alone in opposition to all his brethren, declining to take
cognizance of what he regarded as a purely political question lying beyond the judicial authority. On the present occasion, with the assent
of all his brethren who participated in the argument, ~ he stands nearly
* See note, ante, page 492.
t 7 Howard's Reports, 1.
d ante, page 499.
~ Judge Woodbury dissented upon the sole point as to the authority of the State
to declare martial law. His elaborate and masterly opinion upon this question is




524             LIVES OF THE CHIEF-JUSTICES.
upon the same ground. The question which of the two opposing
governments was the legitimate one was purely a question of political
power; the political department of the State had determined it, and
the State courts had recognized and acted upon this determination. Whatever might be the propriety of that decision, it was not
for the Federal tribunals to overstep the boundaries of their known
jurisdiction, and to invade the proper domain of the political department. " Much of the argument on the part of the plaintiff," he remarks,
"turned upon political rights and political questions, upon which the
Court has been urged to express an opinion. We decline doing so. The
high power has been conferred on this Court of passing judgment upon
the acts of the State sovereignties, and upon the legislative and executive branches of the Federal Government, and of determining
whether they are beyond the limits of power marked out for them respectively by the Constitution of the United States. This tribunal,therefore, should be the last to overstep the boundaries which limit its own
jurisdiction. And while it should always be ready to meet any question confided. to it by the Constitution, it is equally its duty not to pass
beyond its appropriate sphere of action, and to take care not to
involve itself in discussions which properly belong to other forums."
The scrupulous caution of the Chief-Justice in confining the exercise
of the judicial power within its well-defined and circumscribed limits,
and his repugnance to assume an authority not warranted by the
strict terms of the Constitution, are manifest not in the foregoing cases
only, but in nearly all the constitutional cases which came before him.
One or two exceptions, however, have occurred, and among them the
most prominent, perhaps, and boldest, is that extending the admiralty
jurisdiction of the Court beyond the flow of the tide on navigable
waters, and over the great lakes.
The Constitution of the United States provides that the judicial
power shall extend " to all cases of admiralty and maratime jurisdiction;" and the question whether Congress could ever grant the Federal Courts, or the courts could ever constitutionally exercise, power to
hear and adjudicate cases which were not of " admiralty and maratime jurisdiction" at the time of the adoption of the Constitution,
the reponse sans replique of juridical argument, and leaves the subject very
nearly exhausted.




ROGER B. TANEY.                     525
might well be considered a question of no slight importance. In the
earlier discussions in the old Supreme Court, it had been settled contrary, as it was very ably argued, to the English admiralty cases, that
the jurisdiction extended within the body of a county on tide waters;*
and the doctrine seemed too well settled to be shaken, although in the
recent case of Waring vs. Clark, to which I have referred on a preceding page, Judge Woodbury, with whom Judge Daniel concurred,
endeavored, unsuccessfully, to bring the Court back to what he regarded as the more strict and legitimate constitutional construction.It was, however, considered as equally well settled that if the jurisdiction did extend infra corpus comitatus, it was also, as in England,
limited by the ebb and flow of the tide. The doctrine was so laid
down by Judge Story as the unanimous opinion of the Court in the
case of the Thomas Jefferson, in 1825,t and was recognized and followed by subsequent cases.
I have alluded in the preceding sketch of Chief-Justice Marshall to
the opinion entertained by that distinguished Judge, that these cases
had been decided upon wrong principles, and that the admiralty
jurisdiction of the Federal Courts ought to be held to extend over
the lakes, as well as over our great rivers as far as navigable btyond
the flow of the tide.~  No convenient opportunity, however, ever
occurred to him to express these views in a judicial decision. The
task passed into the hands of his successor upon the bench, by whom
it was performed in precisely the same manner that it would have
been done by Marshall himself.
The case which elicited this important opinion of Chief-Justice
Taney is that of Tlhe Genesee Chief, at the December term of 1851.11
The collision and loss had happened on Lake Ontario, and the vessel
had been libelled in the District Court for the Northern District of
* See remarks on this subject, ante page 250, and note.
t Judge Daniel has always consistently and firmly adhered to these views.
See his dissenting opinions in New Jersey Steam Navigation Co. vs. The Merchants Bank, 6 How. 344. Newton vs. Stebbins, 10 How. 586. Genesee Chief vs.
Fitzhugh, 12 How. 443.
t 10 Wheaton's Reports, 428. And see Steamer Orleans vs. Phcebus, 11 Peters
175. United States vs. Combs, 12 Peters. 72.
~.nte, page 444.
ji Propellor Genesee Chief et. al. vs. Fitzhugh et. al., 12 Howard, 443.




526             LIVES OF THE CHIEF-JUSTICES.
New York. In 1845 Congress had passed an act extending the admiralty jurisdiction over the lakes and the navigable waters connecting,
and the important question now presented was, whether this act was
authorized by the Constitution. The question had never yet been
directly presented or decided. For though the attention of the Court
had been directed to it in Waring vs. Clark,* and also at the next
subsequent term in the New Jersey Steam Navigation Company vs.
The Merchants' Bank,t yet nothing upon this point was definitely
settled. The Chief-Justice now met the question boldly, and finally
disposed of it. The judgment of the Court was pronounced by him.
He sustained the act of Congress, and the jurisdiction, upon the broadest and most extended principles. The prior decisions of the Court
limiting the jurisdiction to tide waters, commencing with the case of
the Thomas Jefferson, are all swept away. As to that decision, he
remarks, that, as it was "founded in error, and the error, if not corrected, must produce serious public as well as private inconvenience
and loss, it becomes our duty not to perpetuate it." The validity of
the act of Congress is placed upon the original and inherent jurisdiction of the Court. "It is evident," he says, " that a definition that
would at this day limit public rivers in this country to tide water
rivers is utterly inadmissible. We have thousands of miles of public
navigable waters, including lakes and rivers, in which there is no tide.
And certainly there can be no reason for admiralty power over a
public tide water, which does not apply with equal force to any other
public water used for commercial purposes and foreign trade. The
lakes and the waters connecting them are undoubtedly public waters;
and we think are within the grant of admiralty and maratime jurisdiction in the Constitution of the United States."
The only dissenting voice to this judgment of the Court, as appears
from the report, was that of Mr. Justice Daniel. Judge Woodbury
was no longer there to enter a protest against the adoption of a principle, analogous to that which, on a previous occasion, he had so powerfully combated. He died during the preceding vacation, and the
customary lionors had been offered to his memory at the opening of
this session of the Court.t
* 5 I1oward Reports, 441.
t G Howard Reports, 344.
t The public career and eminent services of Judge Woodbury are too well




ROGER B. TANEY.                          527
At the ensuing session, the same melancholy tribute was rendered
to the memory of Judge McKinley, of Alabama, who had died since
the last adjournment.*
known to require even a passing notice in this place, and indeed it would be doing
him injustice to attempt it within the brief limits of a note. Governor of the
State of New Hampshire, Secretary of the Navy, and afterwards of the Treasury,
and for many years one of the ablest and most eminent members of the United
States Senate, his last and greatest distinction-in the eloquent words of Attorney-General Crittenden-was that of "Judge of the Supreme Court of the United
States, whose jurisdiction is more extended than any other upon the continent, and
whose mandate is obeyed from Boston to San Francisco." He was but six years
on the bench, but he was there long enough to leave behind him, in the language
of the same eloquent speaker, " a fame which is immortal."
In response to the brief address of the Attorney-General on the death of Judge
Woodbury, Chief-Justice Taney remarked: "His life had been passed mainly in
the public service, before he became a member of this Court. And in the various
and important offices, judicial and political, to which he had been appointed, he
was always found equal to the duties imposed upon him, and never failed to distinguish himself by the extent and accuracy of his information upon every subject connected with his official duties, or upon which he was at any time called
upon to act. The same learning, and the same untiring industry, marked his brief
course on this bench. We all feel that we have lost in him an able, upright, and
learned associate, and most truly and sincerely deplore his death."
The judicial and constitutional opinions of Judge Woodbury are to be found in
Howard's Reports from the 4th to the 11th volume inclusive. His speeches and
other works have been recently published, and furnish a valuable addition to the
political history of the country.
* JUDGE McKINLEY had been a member of the court for fifteen years, having
been appointed by President Van Buren in the spring of 1837, under the act increasing the number of judges to nine. He had been a distinguished member of
both houses of Congress, and at the time of his appointment as judge, had just
been elected a senator from Alabama for the full term of six years. His death
was accelerated, it is thought, by the efforts he made to attend the last session of
the Court, when his health had become too infirm to encounter the fatigue of a
journey to Washington. The character of Judge McKinley, both as a jurist and
a man, is very appropriately summed up by Attorney-General Crittenden in his
brief address to the Court, on moving the customary resolutions:' I had the good
fortune," he remarks, " to be acquainted with Judge McKinley from my earliest
manhood. In the relations of private life he was frank, hospitable, affectionate.
In his manners he was simple and unaffected, and his character was uniformly
marked with manliness, integrity, and honor. Elevation to the bench of the




528               LIVES OF THE CHIEF-JUSTICES.
The present sketch would be extended to undue limits, were I to
enter upon a particular review of the various constitutional and other
important questions which have occupied the attention of the Supreme
Court for the last three or four years, and in the discussion and final
determination of all of which the vigorous and still active mind of
Judge Taney has participated. I may mention, however, in passing,
that at the session, commencing December, 1850, he pronounced the
judgment of the Court, in the case of The Philadelphia and Wilmington
Railroad Co. vs. Maryland,* re-affirming the doctrine which had, on
more than one occasion, been held, that the taxing power of a State
is never presumed to be relinquished, or, unless the intention to relinquish, is declared in clear and unambiguous terms; and therefore that
a railroad corporation, chartered by the State, is not presumed to be
exempted from State taxation.t    Also, that at the subsequent term,
commencing December, 1851, he delivered an able dissenting opinion
in the celebrated Wheeling Bridge case, a controversy still fresh in
the public mind, and too well known to require more than a passing
notice.t  Also, that at the following session, commencing December,
Supreme Court made no change in him. His honors were borne meekly, without
ostentation or presumption.
" He was a candid, impartial, and righteous judge. Shrinking from no responsibility, he was fearless in the performance of his duty, seeking only to do right.
and fearing nothing but to do wrong."
Chief-Justice Taney adds that " He was a sound lawyer, faithful and assiduous
in the discharge of his duties, while his health was sufficient to undergo the labor."
And that, " He was frank and firm in his social intercourse, as well as in the discharge of his official duties; and no man could be more free from guile, or more
honestly endeavor to fulfil the obligations which his office imposed upon him."
* 10 Howard's Reports, 377.
t The principle was similar to that laid down by Chief-Justice Marshall, in
Providence Bank vs. Billings, heretofore noticed. It was also based upon similar
grounds with those assumed by Chief-Justice Taney in his earliest constitutional
judgment, in the Charles River Bridge case. It is proper here to remark that the
principle of the latter case was fully sanctioned by the Court at this term, in the
case of East Hartford vs. Hartford Bridge Co., 10 How. 511, the opinion being
given by Judge Woodbury, in which he cites with approbation a portion of the
reasoning of the Chief-Justice in the Charles River Bridge case.
t 13 Howard's Reports, 519.
In this case, it will be recollected, the Court declared the bridge a nuisance, and
that the act of Virginia authorising the structure, so as to obstruct navigation,




ROGER B. TANEY.                       529
1852, he dissented from the judgment of the Court, in a brief opinion,
in the important case of The Vincennes University vs. The State of
Indiana, holding, in opposition to the majority of his brethren, that a
reservation of public lands by Congress, for the use of a seminary of
learning, was not like a grant or donation to a private individual, or for
private purposes, but that the State, on the organization of its government, succeeded to the land as trustee, and could constitutionally dispose of it, and appropriate the fund to the uses for which it was
dedicated.*  At the same time he delivered the judgment in Kennett
et al. vs. Chambers,t a case arising in the Texas district, in which is
re-affirmed the safe, and wisely conservative, principle, that it belongs
exclusively to the political department of the government to recognize
a new government in a foreign country, claiming to have displaced an
old and established one, and until such recognition, the Judiciary are
bound to consider the old order of things as having continued. The
legal consequence of this rule, in its application to the particular case,
was held to be, that a contract to advance money to a General in the
Texan army, after the declaration by Texas of its independence, but
before recognition by the United States, was void, as being in contravention of the public policy and laws of the Union.
In bringing to a close this review of the judicial labors of ChiefJustice Taney, I might with propriety apologize for its incompleteness
and imperfection. Looking back upon the extensive field which has
been passed over, I am satisfied that but little more has been done in
his case, as in the case of his predecessor, than to gather, here and there,
would afford no protection to the company, inasmuch as the Ohio, being a navigable stream, was subject to the commercial power of Congress. On the latter point
the Chief-Justice thought the case fell precisely within the principle of the Blackbird Creek Marsh Company, decided in Chief-Justice Marshall's time. Ante, page
425. And he could not perceive, he says, " how the mere grant of power to the legislative department to regulate commerce, can give to the judicial branch the power
to declare what shall and what shall not be regarded as an unlawful obstruction."
Mr. Justice Daniel, in a strong and well reasoned opinion, also dissented from the
majority of the Court. It is proper to add that the judgment of the Supreme
Court was practically nullified by a subsequent act of Congress, declaring the
Wheeling Bridge a post road of the United States.
* 14 Howard's Reports, 269.
t 14 Howard's Reports, 39.
34




530             LIVES OF THE CHIEF-JUSTICES.
a sheaf, leaving a rich and abundant harvest behind. To gather that
little has been no easy task, for the profusion of the material renders
it the more difficult to make a proper and discriminating selection. I
have aimed to confine the review mainly to the most important constitutional questions, which, from time to time, have come before him. In
doing so, it has been unavoidably necessary to pass over without
notice a mass of interesting cases, comprehending almost every branch
of civil jurisprudence, connected, not only with those subjects which
belong exclusively to the Federal tribunals, but embracing, also, the
entire range of legal and equitable remedies. A thorough and accurate study of these subjects is the province of the professional man
alone; and a critical review of them would not, therefore, be expected
in this place. Perhaps enough has been done, however, to indicate
something of the extent, the variety, and the usefulness of the labors
performed by the subject of this sketch during a period of eighteen
years' uninterrupted service on the bench, and to convey to the reader
some adequate notion of those rare endowments of character, of intellect, and of temperament, which must combine in the man, who, as has
been the good fortune of Judge Taney, is able to fill with honor to
himself, and profit to his country, the office of Chief-Justice of the
United States.
Judge Taney married, in early life, a daughter of John Ross Key,
and has seen a numerous family growing up around him. He has now
reached a ripe old age, but is yet, as his later judgments abundantly
manifest, in the full possession of his mental faculties.
He still presides with ease and dignity over the deliberations of the
Supreme Court. The past session has been one of more than ordinary
labor. An uninterrupted term of three months was followed by a brief
recess during the month of March, the session again commencing on
the first of April. Several causes of great magnitude and intricacy
were brought before the Court. Among these, the Spanish land title
case, Choteau vs. Malony, involving property to the amount of many
millions of dollars, the result of which was looked for with intense
interest, and which has been decided against the validity of the Spanish grant; also the McDonough will case, on which depended property to the amount of from five to eight millions of dollars, devised
mainly for charitable purposes to the cities of Baltimore and New




ROGER B. TANEY.                     531
Orleans.* The importance of some of these cases was such as to
induce the Court to relax the two hour rule, and this of course protracted the labors of the session. The argument of the McDonough
Will case alone occupied the greater portion of a week-an argument,
it may be added, distinguished by an uncommon display of forensic
ability, eloquence, and learning.
And during all these discussions, from the commencement to the
close, the venerable Chief-Justice was to be seen in his seat, day after
day, vigilant, patient, attentive, and carefully listening to every word
uttered, and apparently weighing each sentence, and every proposition,
as it fell from the lips of the advocate. Every day, at the usual hour
of opening the Court, whoever else might be absent, he was sure to be
seen, heading the procession of Judges, and with slow and measured,
but firm step, approaching his customary seat. Whatever impatience
or indifference others might manifest at the dullness or prolixity of an
argument, no sign or look upon his countenance indicated anything
else than the most careful attention. You might watch him by the
hour, and it was the same. You might be sure that he suffered no
word to escape him; that he heard every thing worth hearing; that his
mind was fixed upon the subject; and that he remembered whatever
might be material to the merits of the argument. I have elsewhere
remarked that the patience of Chief-Justice Marshall was proverbial,
and that he was one of the best listeners who ever sat upon the bench.
In this respect, Chief-Justice Taney emulates the example of his illustrious predecessor. No one who, with respectful address, invokes the
Court where he presides, fails to obtain a full and attentive hearing.
I believe there are no qualities of the Judge which more strongly win
upon the favor of the profession, than that amenity of temper and
equanimity of mind which lead him, on all occasions, to a calm, earnest,
respectful, and (even though apparent only) unabstracted attention
to the arguments addressed to him. The best listener, other things
being equal, has generally the strongest hold upon the affections of
the bar; for an attentive and respectful hearing is a spontaneous compliment to eloquence, it is a delicate flattery to modest mediocrity, and;a kind of benevolence even to dullness itself. Many an advocate at
* Mr. Justice Campbell delivered the opinion of the Court in this case, sustaining
the will.




532             LIVES OF THE CHIEF-JUSTICES.
the bar, no matter whether with a bad or a good case, has felt the
risings of that hot and passionate indignation which prompted the
exclamation of the Athenian: "Strike, but HEAR ME!" But it has
not been at the bar of the Court where Marshall presided, and where
Taney presides. To the elevated and pure minds of Judges like these,
an attentive hearing of the case is not merely the exercise of an empty
compliment, but it is a solemn obligation. To HEAR is, with them, a
part, and no inconsiderable part, of judicial duty; and this duty is
discharged with a full appreciation of the deeply significant truth embodied in that delicate and classic conception which associates the
bandaged eyes of Justice, with the ever open and attentive ear.
The present is not perhaps the proper time or occasion to speak of
the private and social virtues of the eminent man whose public career
I have thus endeavored to trace. That task will be more appropriately performed hereafter. A sense of delicacy forbids any attempt
to speak the eulogy of the living; in a few more years it may be done
with freedom, with discriminating impartiality, and without reserve.
It is the province of the cotemporary observer to note facts, and to
record the actions of those eminent men who still remain upon the
stage, and of posterity to pass upon their merits after they shall have
gone from among us. It is sufficient here to say, what all who know
Chief-Justice Taney, will regard as but a simple act of justice, that in
the domestic relations, and in the private and social intercourse of life,
he is as much beloved as he is respected in his public and judicial character. A reputation beyond reproach or the breath of calumny, a
purity of life that no man can assail, a frank, independent, manly
uprightness of conduct which knows no guile, are united with that
benignity of temper, those generous sympathies of the heart, and
those solid household virtues which brighten the social circle, and
gladden the domestic hearth. In his intercourse with others there is
a warmth of kindly feeling, united with an unaffected simplicity of
manner, that irresistibly wins upon all who approach him; but it is
blended with a natural dignity of carriage that commands respect, and
represses undue familiarity.
We may point to Judge Taney as one of our best specimens of the
American lawyer and jurist. His whole life, from earliest manhood,
has been professional. He is one of the few really eminent men of the




ROGER B. TANEY.                     533
country who have scarcely any political history. With the single exception of the brief period, during which he filled the office of Secretary of the Treasury, in the Cabinet of General Jackson, he was never
at any time entirely withdrawn from the studies connected with his
profession. The few years of his service in the Maryland Legislature,
temporarily diverted his attention, but did not entirely interrupt his legal
pursuits. His appointment as Attorney-General of the United States
introduced him merely to a wider theatre of professional action. He
came to the bench, a deeply read, and profoundly learned lawyer-a
master of the principles, and thoroughly skilled in the practice, of the
law. He brought with him large acquirements, and the fruits of a
ripe experience, and the result has been, that he has sustained himself
with ability and honor, as the head of the Federal Judiciary, and has
proved himself, in the words of Mr. Clay, " a worthy successor of
Chief-Justice Marshall."
Long may he continue to fill that place, and to enjoy that merited
distinction. To one like him, we may address, in no spirit of unmeaning adulation, the words of the Roman bardSerus in ccldni redeas.