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Deposited by the
Linonian and Brothers Library

THE

LIVE 8 AND TIMES

THE CHIEF JUSTICES

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HENRY FLANDERS.

SECOND SERIES.
WILLIAM GUSHING — OLIVER ELLSWORTH-
JOHN MARSHALL.

PHILADELPHIA:
J. B. LIPPING OTT & CO.
LONDON: T R i; B -V E E >t CO.
1 8 5 s.

Entered, according to Act of Congress, in tlie year 1867, by
HENRY FLANDERS,
in the Clerk's Office of the District Court of the United States for the
Eastern District of Pennsylvania.
STKREOTTl'ED BY J, FAGAN.

/. 0 /- /

PREFACE.

The Chief Justices of the United States, with a
single exception, were prominently engaged in the
leading events of our history as a nation. They par
ticipated actively in the scenes of the Revolution, and
assisted to lay the foundations of our government.
Necessarily, therefore, the narrative of their lives must
comprehend a wide compass of political and historical
information. We have endeavored, however, to inter
mingle no more of such matter than would serve to
illustrate the character and services of the men whose
lives we have written, and the times in which they
acted. In preparing the present volume for the press, we
have received material assistance from various sources,
which has lightened our labours, and contributed much
to whatever is valuable in their result.
The life of Gushing, from his entire devotion to the
duties belonging to his station in the judiciary, and his
consequent withdrawal from politics, furnished but
scanty materials for the purposes of biography. Much
interesting information, however, which public docu
ments could not supply, was courteously placed in
our hands by Mr. Charles C. Paine, of Boston. To
the venerable Dr. James Kendall, of Plymouth, Massa
chusetts, we are indebted for several interesting remi
niscences, and to the Honorable Josiah Quincy, Sr.,
(V)

VI PREFACE.
for a portraiture of his moral and intellectual charac
teristics. We are also under particular obligations to
Mr. William S. Russell, the Recording Secretary of
the Pilgrim Society at Plymouth.
The life of Ellsworth contains a number of his let
ters, hitherto unpublished, written while a member
of the Continental Congress, and during his stay in
England after the conclusion of his mission to France.
They were placed at my disposal by the late Mr.
Joseph Wood, of New Haven, a son-in-law of Chief
Justice Ellsworth, who had prepared a biography of
him on a very extensive plan, and which compre
hends, it is believed, all of his correspondence that is
now in existence. The reader will perceive that we
are also indebted to Mr. Wood for several interesting
facts and anecdotes. •
"Marshall's letters respecting his biography of Wash
ington, were politely submitted to my use by Mr.
James H. Castle, of the Philadelphia bar, who has
preserved with praiseworthy care the extensive corres
pondence of Judges Washington and Marshall, relating
to the publication of that work.
To Mr. Winthrop Sargent, who is well known to the
public by his graceful history of Braddock's Expedition,
and to his friends by his liberal culture and genial dis
position, we are especially indebted for various infor
mation and many valuable suggestions.
Philadelphia, Sept. 1, 1857.

CONTENTS,

THE LIFE OP WILLIAM CUSHING.

CHAPTER I.
Page
His Ancestry — Matthew Gushing — The first Judge Gushing — The second
— His politics — His style of travelling described by John Adams —
Character of  =  11-14
CHAPTER II.
1732 — 1771.
William Gushing — His Birth and Education — -Studies the Law — Jeremiah
Gridley — Removes to Pawnalborough — His Business — Appointed
Judge of Probate  ,  15-17
CHAPTER III.
1771 — 1775.
Appointed Judge in place of his Father — His Marriage — Political state
of the Colonies — Cushing's position — Explanation of — His Character
— Dispute about payment of the Judges' salaries — Conduct of the
Judges with regard to — the Chief Justice impeached — Cessation of
the Courts  18-25
CHAPTER IV.
1775 — 1789.
Chief Justice of Massachusetts — Declaration of his Sentiments — Town-
meetings — Gushing as an Orator — Character as Chief Justice — Pre
sides at a Murder Trial — Dignity of his Appearance — His Judicial
Wig — Dress of the Judges — Decision respecting Slavery — Interrup
tion of the Courts — Anecdote respecting — Solicited to become a
Candidate for Governor of Massachusetts  20-35
(yii)

Vlll CONTENTS.
CHAPTER V.
1689—1796.
Approves the Federal Constitution — A Member of the State Convention
— Presides in the Absence of Hancock — An Elector of President —
Associate Justice of the Supreme Court — Present at the Opening of
Court — Anecdote respecting his Wig — Holds Circuit Courts — His
mode of Travelling — His Judicial Opinions  86-45
CHAPTER VI.
1796 — 1810.
His Appointment as Chief Justice — Anecdote of— Declines — His politics
— Charges to Grand Juries — His death  46-48
CHAPTER VII.
Conclusion — His person — His manners — His character — His acquire
ments and talents  49-51

LIFE OF OLIVER ELLSWORTH.

CHAPTER I.
His Ancestry — Josiah Ellsworth — Derivation of the name — Descendants
of Josiah Ellsworth — David Ellsworth — His marriage  55-60
CHAPTER II.
1745 — 1771.
His Birth and Education — Prepared for College — Enters Yale — Removes
to Princeton and graduates — Anecdote — Studies Theology  Aban
dons Theology for Law— His Instructors — His Text-books— Dis
charges his debts  57-60
CHAPTER III.
1771 — 1784.
His marriage— Takes the Lease of a Farm— Professional prospects-
Amount of fees for the first three years of his practice  Anecdote —
His first success — Removes to Hartford — Extent of his business —

CONTENTS. IX
Talents as a lawyer — Secret of his ability^Energy and earnestness
his characteristic excellencies — His success with jui'ies — Dr. Johnson
— Anecdote of — Investment of his gains  61-67
CHAPTER IV.
1775 — 1781.
His political course — Member of the Connecticut Assembly — The Pay-
table — Delegate to Congress — Arrangement with regard to the Dele
gates — Services in Congress — Character of his mind — His business
talents — His service on Committees— Case of the sloop Active — His
Correspondence — Distress in the Army — Situation of Congress —
Ellsworth's Letters respecting public affairs  68-97
CHAPTER V.
1781 — 1783.
Service in Congress continued — State of the Country — Languor of the
States — the Finances — Ellsworth's opinion respecting — Plans to
obtain Revenue — His Correspondence — Feeling of the Statesmen of
the Revolution towards Great Britain — Continuation of his Corres
pondence  98-115
CHAPTER VI.
1780 — 1784.
A member of the Governor's Council — His influence — His fondness of
children — Anecdote respecting  116-115
CHAPTER VII.
1784 — 1789.
A Judge of the Superior Court of Connecticut — Kirby's Reports — State
of the law when he came to the Bench — His Judicial opinions.. ..119-128
CHAPTER VIII.
1787.
The Federal Convention — Necessity of Reform — Members of the Con
vention — Mr. Calhoun's Eulogy of Ellsworth — His sentiments re
specting re-organization of the Federal authority — Member of the
State-Rights party — Roger Sherman — Wm. Samuel Johnson — Ells
worth's opinion as to title of the new Government — Would preserve
the Existence of the States— Would preserve their Equality — Opinion
as to the payment of the Members — Would have number of Repre
sentatives small — In favor of their annual election — Opposed to pro
perty qualification — In favor of admitting aliens — Opposed to the
Vol. IL — 1

X CONTENTS.
Government issuing paper-money— Opinion respecting assumption of
State debts ; respecting the basis of Representation— Doctor John
son's views with regard to— Gouverneur Morris's — Ellsworth's opinion
as to Importation of Slaves, and a Navigation Act — In favor of Ap
pointment of the Executive by Electors, and of six years as his term
of office— In favor of his re-election ; and of an Executive Council
— Urges appointment of Federal Judiciary by the Senate — Urges the
Ratification of the Constitution by the Legislatures of the several
States  127-143

CHAPTER IX.
1788.
The Constitution of Connecticut — His Speeches — Their character — Rati
fication of the Constitution  144-157
CHAPTER X.
1789 — 1796.
Member of the United States Senate — Meeting of the first Congress —
Ellsworth's services — His business talents — Eloquence — Chairman of
the Judiciary Committee — Bill for organizing the Judiciary — Oppo
sition to — Ellsworth's reasons in favor of District Courts — Hamilton's
plan for maintaining the public credit — -Ellsworth's views respecting
the powers of the Government — Objects to some features of Hamil
ton's scheme — His position in the Senate — Admission of Rhode
Island into the Union — Opposition to the Administration — Creation
of a Bank — Duty on ardent spirits — Whiskey Insurrection — Ells
worth's letter respecting — Importance of the questions discussed in
Congress — Tend to develop his latent abilities — The French Revolu
tion — Parties in the United States greatly excited by — Genet — Pro
clamation of Neutrality — Opposition to — Madison's resolutions — In
ception of Mission to England — Ellsworth's interview with Washing
ton — His letter to Oliver Woloott, Sr., respecting public affairs — The
debts of the South — Jay nominated as Minister to England — Em
bargo — Jay's mission — -Great excitement in consequence of his
Treaty — Delay of the Executive to ratify — Ellsworth's intense anxiety
respecting — Opposition of the House of Representatives to appropri
ate the money to carry into effect the Treaty — Right of the House to
demand the papers relating to the Negotiation^Rutledge's opposition
to the Treaty — Strength of the opposition to the Administration 
Ellsworth's opinion of Jefferson — His support of Washington's admin
istration — His talents as a Parliamentary Orator — Anecdote of Mr.
Gunn — Ellsworth's colloquial talents — Appointed Chief Justice — Re
signs his seat in the Senate — John Adams' opinion of his services in
the Senate— Aaron Burr's description of his influence  158-183

CONTENTS. X]
CHAPTER XI.
1796 — 1800.
Chief Justice of the United States — Doubts his fitness for the office —
Qualifications for the office — His Judicial Demeanor — His personal
appearance — His popularity as a Judge — Anecdote — Judge Chase
and Mr. Ingersoll — Sails for Savannah — the Duke de Liancourt a
fellow passenger — His account of Ellsworth — Charges to Grand Juries
— Opinions as to the Alien and Sedition Laws — Williams's case — His
Judicial Opinions — Character of the Cases decided by him — His
popularity — ^Intimacy with Washington— Letter of the latter  184-210
CHAPTER XII.
1799—1800.
Envoy to France — The French Revolution — Treatment of the United
States by France — Negotiations with France — Measures adopted by
the Administration — The President's Speech — Extraordinary Com
mission sent to Paris — Its ill-success — Measures adopted by our
Government in consequence — The President's Declaration — Charge
against the Federal Leaders — Decision of the President respecting
Bank in Officers — Hamilton's influence — The President's jealousy of
— Propriety of the 3d Mission to France — Grounds of the President's
action — How Viewed by his Friends — Nomination of Envoys — William
R. Davie appointed in room of Mr. Henry — Talleyrand gives the
Assurances required — His implied Censure of the President — Instruc
tions to the Envoys to depart — News from Europe — Ellsworth's letter
to the President — The President's Reply — The President meets the
Cabinet at Trenton — His visit to EUsworth^Account of — Ellsworth
goes to Trenton — Adams mistrustful as to the object of his visit —
State of Affairs in Europe — Anecdote — Determination of the Presi
dent as to a suspension of the Mission  211-2.'54
CHAPTER XIII.
1799 — 1800.
Continuation of the Mission to France — Instructions to the Envoys — Ells
worth consulted respecting — His Opinion in regard to — Condition
attached to their Instructions — Envoys sail for France — Sea-sickness
— Arrive at Lisbon — Overthrow of the Directory — Set sail again —
Disembark at Gorunna — Proceed to Paris — Cordially received — The
Negotiation begins — Conducted by Ellsworth on part of the United
States — His success — Progress and Result of the Negotiation — Disap
proved by many leading Federalists — Ellsworth's Vindication of —
Wolcott and Pickering — The Treaty ratified with a single Modifica
tion— Effect of the Modification  235-251

Xll CONTENTS.
CHAPTER XIV.
1800—1801.
Incidents of his Residence in Europe — His acquaintance — Volney — Anec
dotes of^Talleyrand — Anecdotes of — Fete at Marfontane — Descrip
tion of — Departure of the Envoys — Ellsworth's health — Determines
to spend the winter in Europe — Proceeds to England — Letters from
Bath — Visit to London — How received by the Court — Goes to West
minster Hall— Anecdote — His Amusements while in England — Re
turns to Bath — Letters respecting the Treaty with France, and the
Election of Jefferson — Sails for the United States  252-266
CHAPTER XV.
1801 — 1807.
Member of the Governor's Council — His health — His return to Windsor —
Death of his son — Duties as a Member of the Council — His influence
there — Appointed Chief Justice of Connecticut — Declines  267-270
CHAPTER XVI.
1807.
Conclusion — Fond of Agriculture — Essays on Rural Affairs — His style of
living — His Intercourse with his Neighbors — A believer in Christi
anity—Regard for the Sabbath, and the Bible — His Theological be
lief — His habits and tastes — Anecdote — His health — His sufferings
— His death — His funeral — His personal appearance — His moral and
social qualities — His intellectual endowments  271-276

LIFE OF JOHN MARSHALL.

CHAPTER I.
His Ancestry— His father, Thomas Marshall— The Chief Justice's affec
tion for — Marriage of Thomas Marshall  ,  279-281
CHAPTER II.
His Birth and Education— Taught by his Father— Imbibes a love of litera
ture—His early life— Goes to reside with the Rev. Mr. Campbell-
Absent a year— Studies Latin— Returns Home and continues his

CONTENTS. Xni
studies with the Rev. Mr. Thompson — Extent of his Classical tuition
— His father superintends his English education — Effect of Scenery
upon — Style of living — Fond of athletic Exercises — Begins the study
of the Law  282-285
CHAPTER III.
1775 — 1780.
His Military services — Difficulties with England — Political sentiments of
young Marshall — Appointed Lieutenant of a Militia company — Pro
ceedings of Lord Dunmore — Effect of — Description of young Mar
shall — Minute-men — Their appearance — Lord Dunmore's apprehen
sion of — He flies on board a Man-of-war — Proceedings of — Action at
the Great Bridge — Marshall engaged in — Appointed a Lieutenant in
11th Virginia Regiment — Sent to the North — Joins the Army at
Morristown — Condition of the Army — Marshall appointed Captain —
Gloomy period of the war — -His services — The Battle of Brandywine —
Of Germantown — Valley Forge — Marshall's messmates — Their suffer
ings — His good temper — Acts as Deputy Judge Advocate — Acquaint
ance with Hamilton — Evacuation of Philadelphia — Battle of Mon
mouth — Assault of Stony Point — Powle's Hook — His return to Vir
ginia — Invasion of that State — Resigns his Commission  286-300
CHAPTER IV.
1781 — 1799.
His Practice at the Bar — Resumes his Legal studies — Journey to Phila
delphia on foot — -Refused admittance into a Public-house — Begins
his Practice in Fauquier — His legal acquirements — His success — To
what owing — His dress and personal appearance — Anecdote — His
qualities as a Lawyer and Advocate — Business of the Courts — Charac
ter of — Case of Ware vs. Hylton — The Countess of Huntington — Pat
rick Henry — Anecdote — Marshall's argument — Alexander Campbell
— The Duke de Liancourt — His description of Marshall — Political
principles of Marshall — " Propensity to Indolence"  301-319
CHAPTER V.
1782 — 1788.
Member of the Virgima Legislature — His devotion to a Union of the States
— His endeavors to promote — Vindication of the Claims of the Army
— ^His marriage — Removes to Richmond — Wishes to withdraw from
public life — Prevented from doing so — Affairs of the United States
— His Opinions as to increasing the Federal authority — Hailed the call
of the Federal Convention — Approves the Federal Constitution, 320-325

XIV CONTENTS.
CHAPTER VI.
1788.
Member of the Virginia Convention — His personal popularity — Debates
in the Convention — Conspicuous Members — Marshall as a Debater —
Contrast between him and Patrick Henry — His Speeches — Patrick
Henry's Eulogium — Adoption of the Constitution  326-346
CHAPTER VII.
1788 — 1797.
Member of the Virginia Legislature — State of Parties in Virginia — Mar
shall's vindication of Washington's Administration — Retires from the
Legislature — His practice in the Courts — ^Defends Domestic Policy of
Washington's Administration — He is Denounced by the Opposition —
Again elected a Member of the Legislature — Defends Jay's Treaty —
Celebrity of his Speech — His visit to Philadelphia — Meets Ames,
Cabot, and other Federalists — Offered the post of Attorney-General —
Offered the Mission to France — Debates in the Virginia Legisla
ture  347-3-53
CHAPTER VIII.
1797 — 1798.
Envoy to France — Attentions paid to him on his Departure from Rich
mond — Embarks at Philadelphia — The President's description of —
Arrival at Paris — Interview with M. Talleyrand — Difficulties inter
pose — Unofficial Negotiations — Propositions of Talleyrand's agents —
Refusal of the Directory to see the Envoys — Demand of a loan and a
douceur — Refusal of the Envoys — Incidents of their stay in Paris —
Address a Letter to Talleyrand — His Reply — Answer of the Envoys
— They determine to return Home — Gerry is induced to stay^Pass-
ports refused them — Marshall's interview with Talleyrand — Passports
finally sent them — They leave Paris — Republication of their Dis
patches in England — Talleyrand's observations on — Marshall's
arrival in New York — His Reception — Jefferson's account of his
Entry into Philadelphia — A public Dinner is given to him — Returns
to Virginia — Resumes his Practice at the Bar  354-383
CHAPTER IX.
1799 — 1800.
Member of Congress — Offered an Appointment on the Bench of the
Supreme Court — Declines it — Visits General Washington — Anecdote
— Is induced to become a Candidate for Congress — Is assailed by the
Opposing Party— Calumnies against him— Patrick Henry's Letter

CONTENTS. XV
respecting — Marshall's letter to Washington — His Election — State of
Parties in Congress — Wolcott's description of Marshall — Lawyers
considered as Statesmen — Answer to the President's Speech — Death
of Washington — Marshall's Eulogy upon — Approves of the 3d Mis
sion to Paris — Votes in favor of a Repeal of the Sedition Act — His
Speech in the case of Jonathan Robbins — Resigns his seat  384-399
CHAPTER X.
1800 — 1801.
Secretary of State — The Cabinet of President Adams — Members of de
scribed — Resignation of McHenry — Pickering dismissed — Marshall's
appointment as Secretary of State — Importance of his services — His
official Correspondence — His letter respecting Burr and Jefferson, 400-407
CHAPTER XI.
1801-1835.
Chief Justice of the United States — His personal appearance — Described
by William Wirt, Judge Story, and Daniel Webster — His qualities as 1
a Judge — The Bar of the Supreme Court — Dexter and Webster — Hoff
man, Wells, Ogden, Emmett, and Oakley — Tilghman, Rawle, Inger
soll, Duponceau, Hopkinson, Sergeant, and Binuey — Luther Martin, .
Pinkney, and Harper — Wickham, Leigh, Nicholas, and Wirt — Mar-
shah's opinions as to the Constitution — His principles of Construction (
— Aaron Burr — His schemes — His arrest — Case of Swartwout and
BoUman — Trial of Burr — Judicial opinions — Marshall's character as
a Judge — Character of his mind — The veneration and affection felt
towards him by the Bar — Anecdote — Miss Martineau's description
of a Scene in the Supreme Court  408-474
CHAPTER XII.
1800 — 1806.
His Biography of Washington — Price asked for the Work — Price agreed
to be paid for — The Republicans fear he will give a Party bias to his
work — Jefferson's letter to Barlow respecting — Candor of the work —
Letters of Mason L. Weems — Delay in the Publication of the work
— Clamors of the Subscribers — Does not wish his name to appear in
the title page — Yields his Reluctance to the wishes of the Publisher —
His Modesty — Letters to his Publisher— Wishes the Criticisms upon
his work sent to him — Major Jackson's criticism — Marshall's morti
fication at the reception the first volume met with — Its character —
His description of Pitt— His Letters— His candor— Reply to Jeffer
son's strictures — Criticism upon Life of Washington — Delineation of
Washington  475-499

XVI CONTENTS.
CHAPTER XIII.
1829.
Virginia State Convention— Revision of the Constitution— Members of
the Convention— the basis of Representation— Speech of the Chief
Justice respecting — John Randolph's description of — Opinions of the
Chief Justice respecting the Judiciary — Anecdote — Would give the
Senate power to alter a Money BiU — Opposed to Disfranchising per
sons concerned in a Duel — Deference and respect with which he
was treated in the Convention — Assents to the Constitution as
amended  500-515
CHAPTER XIV.
1829 — 1835.
Conclusion — The residence of the Chief Justice — The Ambler family —
Marriage of the daughters — His farms — Fond of Social pleasures —
The Barbacue Club — ^Description of — The Chief Justice punctual in
his attendance at — Anecdote of — His yearly visits to Fauquier —
Anecdote — Bishop Meade's account of — His dress — An early riser —
Goes to Market — Anecdote — Holds the Circuit Courts for North
Carolina and Virginia — His style of travelling — His defence of
Christianity — His genial disposition — Fond of the young — Anecdote
— Generous and just — -Instance of — ^Opiniona with regard to Slavery
— His politics — Views with regard to Secession and Nullification —
Fond of Books — Reads Novels — Poetry — His health — Operation upon
by Dr. Physick— His self-possession — Death of his wife — His atten
tion to — First meeting with his wife — Ardor of his character — Amount
of his fortune at the time of his marriage — His Tribute to the
Memory of his wife — Attends the Theatre to hear Miss Fanny
Kemble — Is cheered— Effect of Miss Kemble's acting upon—Miss
Martineau's description of the Chief Justice — Murray's description
of — His unpretending manner — ^His conversation — Anecdote  His
mind continues firm to the last — His health declines — Visits Phila
delphia to seek medical aid— His death — Calls forth tributes of affec
tion and respect — Town-meeting at Philadelphia — Reception of his
Remains at Richmond — Funeral services — His statue — His religion
— His virtues — Conclusion  616-550

THE LIFE

OF

WILLIAM CUSHING.

(9)

THE

LIFE OF WILLIAM CUSHING.

CHAPTER I.
HIS ANCESTRY.
Late in the summer of 1638, the good ship Diligent
arrived at Boston, in Massachusetts, after a passage
of nearly four months, from Gravesend, England.
Among her passengers was Matthew Cushing, with
his wife, Nazareth Pitcher, and five children. He
had come from the old country, to unite his fortunes
with the pious colonists of the new. He was a God
fearing man, as may be inferred from the names of his
children; two of his sons being called Daniel and
Jeremiah, and two others, Matthew and John. His
only daughter was named Deborah.
Matthew Cushing settled at Hingham, where he
purchased lands, and resided until his death, which
occurred in the year 1660, at the age of seventy-two.
His youngest son, John, was born in 1627. He
married a daughter of Nicholas Jacob, of Hingham,
and subsequently removed to Scituate. He appears
to have been a man of character, enjoying the confi
dence and respect of bis fellow-citizens. He was an
assistant of the colony government of Plymouth, and
(11)

12 LIFE OF WILLIAM CUSHING.
for several years a deputy to the colony court. He
died in 1708, at the advanced age of eighty-one.
His eldest son, John, was born in 1662. He rose
to distinction in the colony, and filled several import
ant offices. He was Chief Justice of the Inferior
Court of Plymouth, Counsellor of Massachusetts, and
for several years a Judge of the Superior Court. He
died January 19th, 1738. 'He was a gentleman,'
says his contemporary, the Rev. Josiah Cotton, of
Plymouth, 'well versed in law; the life and soul
of our Court while he continued in it; a man, in the
main, of justice and integrity. He was above seventy-
years old when he died, and retained his faculties
tolerably well to his last sickness. When the aged
and honorable are taken away, we ought to be sensibly
affected, and earnestly pray that others may be raised
up in their stead, that may do well and worthily in
their day.' '
By his wife, Deborah Loring, of Hull, whom he
married in 1688, Judge Cushing had several children ;
and among the number, a son, who was born July 17th,
1695, and called John.
He was bred to the bar; and, with abilities, learning,
and genial manners, readily achieved the honors of
his profession. He represented his native town several
years in the General Court, was a Judge of Probate, a
member of the Governor's Council, and a Judge of the
Superior Court. This latter position he resigned in
1771. 'He had been on the Bench for twenty-five
years, and sat at the hearing of the great question of
Writs of Assistance in 1760, and at the trial of Captain
Preston, and the British soldiers, for the massacre of

' Cotton's Annals, p. 259 ; an unpublislied manuscript. The ex
tract in the text is taken from the 'New England Historical and
Genealogical Register,' for January, 1854, p. 42.

ANCESTRY. 13
the 5th March, 1770. By the appointment of Chief
Justice Hutchinson to be Governor, and the resignation
of Judge Lynde, he had become senior judge, and the
office of Chief Justice was tendered him ; but he de
termined to retire, and declined it.' '
As the politics of Judge Cushing were not in har
mony with the opinions professed by Otis and his
school, he did not, in the latter part of his hfe, enjoy
their full confidence. Questions, involving points of
political controversy, arose in the courts; and the
judges, from party bias, it was thought, failed to pro
nounce an impartial judgment. The following extract
from Adams' diary may possibly owe its raciness, in
part, to political antipathy. It is characteristic of
Adams, however, if not of Cushing, and is quite
curious. He had set out to attend the Court at
Ipswich; 'overtook,' he says, 'Judge Cushing, in
his old curricle, and two lean horses, and Dick, his
negro, at his right hand, driving the curricle. This
is the way of travelling in 1771; — a Judge of the
Circuits, a Judge of the Superior Court, a Judge of the
King's Bench, Common Pleas, and Exchequer, for the
Province, travels with a pair of wretched old jades of
horses, in a wretched old dung-cart of a curricle, and
a negro, on the same seat with him, driving. But we
shall have more glorious times anon, when the sterling
salaries are ordered out of the revenue, to the judges,
etc., as many most ardently wish, and the judges them
selves, among the rest, I suppose. Stopped at Martin's,
in Lynn, with Judge Cushing; oated, and drank a
¦ glass of wine, and heard him sigh and groan the sighs
and groans of seventy-seven, though he kept active.
He conversed in his usual, smiling, insinuating, doubt-
' Manuscript sketch of William Cushing, courteously submitted
to my use, by Mr. Charles Cushing Paine, of Boston.

14 LIFE OF WILLIAM CUSHING.
ing, scrupling strain.' ' Adams, in other parts of his
diary, does not hesitate to charge him with being
Jesuitical and false.
Judge Cushing lived a little more than six years
after his resignation, in the enjoyment of a competent
fortune, and surrounded by a numerous circle of rela
tives and friends.^
He was twice married. His second wife was Mary
Cotton, a daughter of Josiah Cotton, of Plymouth, and
the mother of the subject of our biography.
' Works of John Adams, Vol. II. p. 279. June 17th, 1771.
' He died at Scituate, March 14th, 1778.

BIRTH, EDUCATION, ETC.

CHAPTER II.
1732-1771.
HIS BIRTH, EDUCATION, AND PRACTICE AT THE BAB.
William Cushing, whose career we are now to trace,
was the son of John and Mary Cushing, of whom we
have made brief mention in the preceding chapter.
He was born at Scituate, in Massachusetts, March 1st,
1732. The particulars of his early years are meagre.
He was prepared for College by Mr. Richard Fitzgerald,
'a veteran Latin schoolmaster,' and at the age of
fifteen admitted a member of Harvard. He graduated
in 1751. What was his progress through the college
course of study, whether distinguished for talents or
otherwise, is, at the present day, unknown. On leaving
college, or shortly after, he became preceptor of the
public grammar school in Roxbury. He held this
situation about a year, and then entered upon the
study of the law with the celebrated Jeremiah Grid-
ley, ' the father of the Bar in Boston.'
How devoted to his profession was Gridley himself,
and how high he placed the standard of professional
acquirement in others, may be inferred from the advice
he gave John Adams, when, as a young man, and an
applicant for admission to the Bar, he sought Grid-
ley's aid and countenance: 'I have a few pieces of
advice to give you, Mr. Adams,' said he. ' One is, to
pursue the study of the law, rather than the gain of it ;
pursue the gain of it enough to keep out of the briers,

16 LIFE OFWILLIAM CUSHING.
but give your main attention to the study of it. The
next is, not to marry early ; for an early marriage will
obstruct your improvement; and, in the next place, it
will involve you in expense. Another thing is, not to
keep much company, for the application of a man who
aims to be a lawyer must be incessant; his attention
to his books must be constant, which is inconsistent
with keeping much company. In the study of law,
the common law, be sure, deserves your first and last
attention ; and he has conquered all the difficulties of
this law, who is master of the Institutes. You must
conquer the Institutes. The road of science is much
easier now than it was when I set out ; I began with
Coke — Littleton, and broke through.' I asked his
advice about studying Greek. He answered, ' It is a
matter of mere curiosity.' ^
Cushing remained in the office of Gridley until he
was called to the Bar, in 1755. He began his prac
tice in his native town of Scituate ; but soon after
removed to Pownalborough (now Dresden), in Maine.
His father owned lands in that region, and this, it is
supposed, was the cause of his going there.
Pownalborough was a frontier settlement ; its popu
lation a collection of Protestants from Great Britain,
Ireland, France, and Germany. The greater part of
them were extremely poor, and very ignorant, without
the means of either religious Or secular instruction.^
Among such a people there was doubtless a great
deal of 'obscure contention;' and Cushing, from the
outset, seems to have found no lack of professional
employment.

' Works of John Adams, Vol. II. p. 46.
" Life of Rev. Jacob Bailey, pp. 79, 81. Bailey was a minister of
the Church of England, and a missionary in this rude settlement.

ETC. 17
When he fixed his residence in Maine, all the country
east of Piscataqua River was included within the limits
of one county. But, in 1760, two new counties were
created out of this extensive territory ; one of them,
called Lincoln, had Pownalborough for its shire-town.
Cushing was appointed Judge of Probate of this lat
ter county, and held the post during a period of twelve
years. But, of this period of his life neither tradition
nor local history has taken note. We presume the even
tenor of his way was uninterrupted by any remarkable
incidents, and that the duties of his office were faithfully
and satisfactorily performed.
Vol. IL — 2

18 LIFE OF WILLIAM CUSHING.

CHAPTER III.
1771-1775.
A JUDGE OP THE MASSACHUSETTS SUPEEIOR COURT.
In the latter part of the year 1771, Cushing's father
resigned his seat on the Bench of the Superior Court
of Massachusetts, and he was appointed to fill the
vacancy. He now returned to his father's in Scituate,
and ' on his death, inheriting the estate, which con
tained about four hundred acres, he continued to reside
there for the rest of his life.' '
In 1774, Cushing, a bachelor of forty-two, married
Miss Hannah Phillips, of Middletown, Connecticut,
a blooming and highly accomplished young lady of
twenty. She survived her husband, to whose com
fort and happiness she was ever devoted, nearly a
quarter of a century; dying in 1834, at the age of
eighty years, and retaining to the last a vivid recol
lection of the scenes and events of former days.
When Cushing took his seat upon the Bench, the
political affairs of the colonies were in a very inflamed
condition. The popular dissatisfaction, in Massa
chusetts, was daily becoming more intense. Those
who were in any way connected with the adminis
tration of the Royal authority were regarded with a
jealous watchfulness. Judge Cushing's position was
embarrassing ; but his caution and reserve were equal
to all its trials. From his appointment, until the out-
' MS. Sketch, by Mr. Chas. C. Paine.

A JUDGE OF THE SUPERIOR COURT. 19
break of the Revolution, in 1775, he took no part,
either on the one side or the other, and carefully
abstained from any expression of his opinions; so
that it was equally unknown, whether hfe sympathised
with the policy of the ministry, or the resistance of
his countrymen. We cannot speak of this guarded
neutrality with approbation. It lacks the saving
grace of decision and courage. Cushing's position,
however, was one of much delicacy. ' His associates
on the bench, with the Governor and many of the
principal persons of the Royal party, were the warm
personal friends of his father, to whom of course he
did not wish to give offence by any avowal of his
political opinions ; and on the other hand, his relative
Thomas Cushing, Speaker of the House of Represen
tatives, Robert Treat Paine, John Adams, and other
influential members of the popular side, were his par
ticular friends. So great were his moderation and
prudence that he continued to enjoy the respect and
good will of both parties without abatement.' ^
Moderation was a distinguishing trait of Cushing's
character. He seemed incapable of strong emotions.
' Grand, swelling strains of liberty,' he might' not
despise ; but they were incapable to warm and animate
him. On the other hand, sentiments of abhorrence
and indignation were foreign to his nature. The
excitement of the times, however, was too great, and
the apprehensions of the popular leaders too lively, to
enable him to enjoy his office with undisturbed tran
quillity. Soon after his accession to the bench, a vio
lent contest arose respecting the payment of the
judges' salaries. Form- ily they had been paid by
the Province ; but abmit this time the ministry
' MS. Sketch, by Chas. C. Paine.

20 LIFE OF WILLIAM CUSHING.
determined that they should be paid by the Crown^'
When this intelligence reached Boston, it occasioned
a prodigious excitement. The change was denounced
as 'big with fatal evils.' ^ The judges already held
their commissions during the King's pleasure, and,
hence, would be entirely dependent on the Crown, if
they derived their salaries fi-om the same source.
When the Assembly met in January, 1773, they made
the usual appropriations for the judges ; but the
Governor,;anticipating the receipt of a royal warrant
for> their payment, witheld Ins assent to their grants.^
The Assembly- now resolved, that any one of the
judges accepting his salary from the Crown, would
discover to the world, that he had not a due sense of
the importance of an impartial, administration of
jnstice; that he was an enemy to the Constitution,
and had it in his heart to promote the establishment
of an arbitrary government in the Province.
At the. -next session, in June, it was resolved, to be
the duty of the judges to declare, ¦ without delay,
whether they would receive their salaries from the
Province or the Crown. If from the latter, then it
would be the duty of. the House to impeach them
before the Governor and Council, as men disqualified
to hold the important posts they sustained.
This notion of impeachment was original, it seems,
with John Adams, ' At this period,' he says, ' the
universal cry among the friends of their country was,
' What shall we do to be saved ? ' It was by all
agreed, as the Governor was entirely dependent on
the -Crown, and the. Council in danger of becoming so,
' This change was made Aug. 7th, 1772.
^ Proceedings of the Boston Town Meeting, Oct. 28th, 1772 ; vide
Gordon, Tol. i., pp. 314-320; Bradford, vol. i., pp. 258-262.
" Mass, State Papers, pp. 365-367.

A JUDGE OF THE SUPERIOR COURT. 21
if the judges were made so too, the libertifes of the
country would be totally lost, and every man at the
mercy of a few slaves of the Governor; but no man
presumed to say what ought to be done, and what
could be done. Intimations were frequently given,
that this arrangement should not be submitted to. I
understood very well what was meant, and I fully
expected that if no expedient could be suggested, the
judges would be obliged to go where Secretary Oliver
had gone, to Liberty Tree, and compelled to take an
oath to renounce the royal salaries. Some of these
judges were men of resolution; and the Chief Justice,
in particular, piqued himself so much upon it, and had
so often gloried in it on the bench, that I shuddered
at the expectation that the mob might put- on him a
coat of tar and feathers, if not put him to death. I
had a real respect for the judges; three of them,
Trowbridge, Cushing, and Brown, I could call my
friends. Oliver and Ropes, abstracted from their
politics, were amiable men, and all of them were very-
respectable and virtuous characters. I dreaded .the
effect upon the morals and tempers of the people,
which must be produced by any violence offered to
the persons of those who wore the robes and bore the
sacred characters of judges; and moreover, I felt a
strong aversion to such partial and irregular recur
rences to original power. The poor people themselves,
who by secret manoeuvres are excited to insurrection,
are seldom aware of the purposes for which they are
set in motion, or of the consequences- which may
happen to themselves ; and when once heated and in
full career, they can neither manage themselves, nor
be regulated by others.' '
' Works of John Adams, vol. ii., pp. 328-330.

22 LIFE OF WILLIAM CUSHING.
, Full af these reflections, he happened to dine, he
says, with Mr. Samuel Winthrop, at New Boston, m
company with several members of the general court
and other gentlemen of the town. The conversation
turned wholly on the topic of the day and the case
of the judges. Adams expressed the opinion that they
had a constitutional resource ; which was nothing more
nor less than an impeachment of the judges, by the
House of Representatives, before the Council. The
idea thus suggested was adopted, and shortly applied.
At the opening of the January session,' Judge Trow
bridge informe,d the House that he had heretofore, and
intended hereafter, to receive his salary from the
Province, and not from the Crown. The other judges
delayed their decision ; but a method was adopted to
obtain it. The House resolved, that, unless they
should declare within three days, that they would
receive their salaries from the General Assembly, and
not from the Crown, decisive measures would be
adopted. This action of the House brought the
judges to a speedy conclusion, and within the specified
time, Justices Ropes, Hutchinson, and Cushing de
clared their determination to receive their salaries
from the Province.^ But the Chief Justice said he
could not decline the grants of the King, without his
Majesty's leave, ' lest he should incur a censure from
the best of sovereigns.'
Mrs. Warren, who was not altogether free from per
sonal and party prejudices, thus speaks of this action of
the judges : ' Two of the judges, Trowbridge and Ropes,
readily complied with the demand, and relinquished the
offensive .stipend. A third was William Cushing, Esq.,
' 1774.
^ Samuel' Adams to Arthur Lee, April 4th, 1774; Force's Ar
chives, vol. i., p. 238.

A JUDGE OF THE SUPERIOR COURT. 23
a gentleman rendered respectable in the eyes of all
parties by his professional abilities and general in
tegrity. He was a sensible, modest man, well ac
quainted with law, but remarkable for the secresy of
his opinions : this kept up his reputation through all
the ebullitions of discordant parties. He readilj^
resigned the royal stipend, without any observations
of his own ; yet it was thought at the time that it
was with a reluctance that his taciturnity could not
conceal. By this silent address he retained the confi
dence of the Court faction, nor was he less a favorite
among the Republicans.' '
The House of Representatives exhibited articles of
impeachment against Chief Justice Oliver before the
Council; but the Council would do nothing, and there
they rested. However, they were printed in the
newspapers, and indirectly effected all the good that
was anticipated from them. For, when the Superior
Court came to sit at Boston, in August,^ both the
grand and petit jurors refused to take their oaths,
assigning among other reasons, that the Chief Justice
had been charged with high crimes and misdemeanors
by the late honorable House of Representatives, and
that he had never been legally acquitted; but had
been declared by that House to be unqualified to act
' Warren's American Revolution, vol. i., p. 117.
^ ' Since the unwarrantable impeachment of the Chief Justice, I
understand he has never taken his seat upon the bench, but he has
promised me to attend the Superior Court, at Boston, towards the
end of the month ; and I hope he will preside also in said Court, to
be held at Worcester, in September, notwithstanding the threats
thrown out against him. I have engaged to meet him at Boston, to
prevent violence, which, from the present system, I don't expect to
meet with there; and I believe that I must attend him also at
Worcester, where I am to expect it.' Governor Gage to the Earl of
Dartmouth, August 27th, 1774; Force's Archives, vol. i., p. 741.

24 LIFE OF WILLIAM CUSHING.
as Judge of that Court. In this dilemma, the Court
adjourned until the next day, when the judges, with
the exception of the Chief Justice, came into Court;
' and to the inexpressible grief of their fellow-citizens,
went on to such business as is usually transacted
without juries.''
But the measures adopted by the popular leaders,
to interrupt and thwart all judicial proceedings,
together with the general determination of the people,
that courts acting under the Royal Government, and
in conflict, as was believed, with their charter, should
not be permitted to sit, put an end, for the present, to
the regular administration of justice in Massachusetts.
The Boston Port Bill, and the subsequent acts for
regulating the government of the Province, and for
the more impartial administration of justice there,
had produced a state of feeling that rendered the
exercise of any branch of the Royal authority well-
nigh impossible. ' Civil government,' thus Avrote
Gage to the Earl of Dartmouth, ' is near its end ; the
courts of justice expiring one after another; and
where there is no other reason for not suffering
them, it is, that the judges of the Inferior Courts, as
well as the justices, are under the Governor's influ
ence by the new acts, though the said acts don't take
place, as to juries, till next month; but he may now
' Force's Archives, vol. i., p, 749. The propriety of General
Gage's presence at Boston, at the opening of the Court, wonld seem
to be vindicated by the following extract from a letter written by a
gentleman in Boston, Aug. 29th : — ' To-morrow,' thus he wrote,
' will be the great, the important day here. Chief Justice Oliver,
impeached by the Assembly last winter, for holding that office under
Ms Majesty's appointment, will sit on the bench at the Superior
Court; the Discontents vow he shall not; but the General has come
hither from Salem to support him, — so we shall see which will prove
the strongest.' Ibid., p. 744.

A JUDGE OF THE SUPERIOR COURT. 25
turn them, the judges and justices, out at pleasure,
though he has as yet made no change in them 
The judges of the Superior Court have been with me,
in a body, to represent the impossibility of carrying
on the business of their Court, in any part of the
Province ; that the force there was by far too small
to protect them everywhere, and after all, no jurors
would swear in ; that it was needless laying fines,
which they could not do on grand juries, there being
no law for it in the Province ; and withal, it would
be in vain, the refusal being universal.''
'As to the Courts,' thus wrote .Joseph Haw ley, a
few months later, 'we must embarrass and retard
them, by preventing suitors, jurors, witnesses,. &c.,
going into them, by' all ways and means, that I have
not time now to explain. A sharp eye must be kept
on them, that we may fully know the success of the
attempts to establish the regulation so far as it
respects the Courts. Sir, I think it of much import
ance to do this : as you regard your own life and your
usefulness to your country, you should most atten
tively reflect on the steps and proceedings of the Court
now sitting at Boston. If they get a grand jury^
then they will probably obtain indictments of high
treason, and indictments will not be procured without
a view and respect to arrests and commitments, con
victions, hangings, drawings, and quarterings. What
your chance will be I need not tell you.'^
We have now arrived at the period, when all judi
cial authority, emanating from the Crown, was over
thrown in Massachusetts. In the following chapter,
however, we shall see that it was presently re-esta
blished by the Provincial Congress.
' Sept. 2d, 1774 ; Force's Archives, vol. i., p. 767.
^ Hawley to Thos. Cushing, Feb. 22d, 1775. Journals of Mass.
Provincial Congress, p. 751.

26 LIFE OF WILLIAM CUSHING.

CHAPTER IV.
1775-1789.
CHIEF JUSTICE OF MASSACHUSETTS
Cushing's position as one of the royal judges,
coupled with his impenetrable reserve on political
subjects, exposed him to suspicion ; but, doubtless, the
respect entertained for him personally, prevented any
unpleasant manifestation of it. Besides, the rapid
progress of events soon compelled him to declare his
sentiments and assume his ground. Alone, of all the
royal judges, he took the side of his countrymen.
That he acted decisively and satisfactorily, may be
inferred from the fact that when the Provincial Con
gress re-organized the Judiciary, in the autumn of
1775, he was appointed one of the judges of the
Superior Court.
In this position, he necessarily incurred great re
sponsibility, and upon the supposition of defeat over
taking the efforts of his countrymen, great danger.
For usurpation of the functions of justice — and usurp
ation it would be considered — would have exposed
him, in case of disaster, to the severest punishment.
He acted, nevertheless, with firmness; though, it would
seem, somewhat doubtful of the grounds on which he
proceeded. 'I can tell the grand jury the nullity of
acts of Parliament,' — thus he wrote John Adams,
who, under the new arrangement, had been appointed
Chief Justice — 'but must leave you to prove it by

CHIEF JUSTICE OF MASSACHUSETTS. 27
the more powerful arguments of the jus gladii divinum,
a power not peculiar to kings or ministers.' '
As the contest proceeded, Cushing perceived the
irreconcilable views of the two countries, and that
independence was essential to the security and welfare
of his own. At a town meeting, in Scituate, on the
4th of June, 1776, he was appointed on a committee
to draft instructions to the representatives of the town
in the Provincial Congress, and thus expressed his
sentiments upon the great question then agitating
the public mind. ' The ministry of that kingdom,'
(Great Britain,) — such is the language of the instruc
tions, as written by Cushing — 'having formed the
design of subjecting the Colonies to a distant, external
and absolute power in all cases whatsoever, wherein
the Colonies have not, and in the nature of things
cannot have any share by representation, have, for a
course of 3-ears past, exerted their utmost endeavors
to put the same plan, so destructive to both countries,
into execution ; but finding it (through the noble and
virtuous opposition of the sons of freedom) imprac
ticable, they have had at length a fatal recourse to
that which is still more repugnant to a free govern
ment, viz., a standing army — to fire and sword, to
blood and devastation — calling in the aid of foreign
troops, as well as endeavoring to stir up the savages
of the wilderness, being determined to exercise their
barbarities upon us, and, to all appearance, to extir
pate, if practicable, the Americans from the face of
the earth, unless they will tamely resign the rights
of humanity, and to repeople this once happy country
with the ready sons of vassalage.
' We therefore, apprehending that such subjection
' May 28th, 1776 ; Adams's Works, vol. ix., p. 390.

28 LIFE OF WILLIAM CUSHING.
will be inconsistent with the just rights and blessings
of society, unanimously instruct you to endeavor that
our delegates in Congress be informed (in case that
representative body shall think fit to declare the
Colonies independent of Great Britain) of our readi
ness and determination to assist with our lives and
fortunes, in support of that necessary measure.'
The town-meeting is the peculiar institution of New
England ; the original fountain, as it were, of the popu
lar liberties; the practical school in which her citizens
are taught the rights and duties of freemen. On this
theatre, Cushing is said to have been invincible. He
was an eloquent speaker; not eloquent in the highest
sense ; but easy in his elocution, and logical in his
argument. ' His oratory,' says his Pastor, the Rev.
Samuel Deane, ' was ready and flowing ; but not of
that overawing description with which some native ora
tors, of more fiery mould, have transported audiences ;
but its excellence consisted in cool, deliberate judg
ment, and logical and lucid argumentation, which
gave him eventually an advantage over those of more
ardent temperaments.' '
On the resignation of John Adams, as Chief Justice
of the Superior Court of Massachusetts^ (Adams, by the
bye, never served in that capacity, being occupied in
the Continental Congress), Cushing succeeded to the
vacant post. Of his labors, while presiding in this
Court, but little has been transmitted that would
interest the reader. He was, however, universally
regarded by the Bar as an able Judge. His legal
knowledge was accurate and extensive, and he always
proved himself equal to the requirements of his posi
tion. He was eminent for the dignity and courtesy

' History of Scituate, p. 257: ^ Adams resigned in Feb. 1777.

CHIEF JUSTICE OF MASSACHUSETTS. 29
of his manner. There are yet living those who knew
him as Chief Justice of Massachusetts; and they
retain a strong impression of the respect which his
presence inspired. ' I was personally acquainted with
Judge Cushing during the last ten years of his life,'
says the venerable and- Rev. Dr. James Kendall, of
Plymouth ; ' was often at his house, and partouk of
the hospitality an.d kindness of his amiable and highly
respected family. As a public man, and particularly
as Chief Justice of the State, I knew him from my
youth. My earliest impressions of Judge Cushing
were received by hearing my father describe his bear
ing and manner, as presiding Judge, at the trial of the
murderers of Dr. Spooner, of Petersham, in the county
of Worcester, more than seventy years ago. My father
lived in Sterling, twelve miles from Worcester, and
was present at the trial of these criminals, four in
number, including the wife of Dr. Spooner. I have a
distinct recollection of the. mild, and yet dignified
manner, as described by ray father, in which he pre
sided at the trial, the impressiveness of his charge to
the jury, and the solemnity and thrilling effect of the
sentence pronounced by the Judge after conviction,
not only upon the criminals, but also upon the Bar,
and the whole audience assembled on this interesting
and exciting occasion.''
The air of superior dignity which peculiarly dis
tinguished Chief Justice Cushing, was no doubt height
ened by the large judicial wig, at that time worn by
the Judges, and which he was among the last to give
up. 'I remember the appearance of Judge Cushing
myself,' says Mr. Hopkins, of Maine. 'I was very
young at the few times when I saw him.. It was some

' MS. Letter to the Author.

30 LIFE OF WILLIAM CUSHING.
years before I entered upon the study of law. I very
well remember, and perhaps I may never forget, the
strong impression his appearance made upon my mind
when I first saw him, as he was walking in a street in
Portland. He was a man whose deportment surpassed
all the ideas of personal dignity I had ever formed.
His professional wig, I have no doubt, added much
to the imposing effect of his external appearance.' '
The impression supposed to be made by dress, by
externals, was carefully regarded by our ancestors.
Besides, English custom dominated in this, as in
weightier matters, and prescribed the mode. But, as
mind becomes cultivated, and knowledge generally
diffused, an appeal merely to the senses is no longer
available — external appearance, solely, no longer
inspires awe or begets respect. If peculiar, so as
to designate a class or profession, it either ceases
to make any impression at all, from being constantly
observed, or excites ridicule instead of reverence. In
either case, it is useless for its objects. ' The dress
of the Judges before the Revolution,' it is stated in
the Memoir of Governor Increase Sumner, ' and which
was continued by them afterwards, was a black silk
gown, worn over a full black suit, white bands, and a
silk bag for the hair. This was worn by the Judges
in civil causes, and criminal trials, excepting those for
capital offences. In these, they wore scarlet robes,
with black velvet collars, and cuffs to their large
sleeves, and black velvet facings to their robes. The
dignified appearance of the Judges, in either dress,
made an impression upon the public mind of reverence
for the authority of the law.' ^
' Address before the Cumberland Bar of Maine, by J. D. Hopkins,
1833. '^ Genealogical Register for April, 1854, p. 116.

CHIEF JUSTICE OF MASSACHUSETTS. 31
Judge Cushing presided as Chief Justice in the
Superior Court of Massachusetts for about twelve
years. His whole period of service in that Court,
as Associate and Chief Justice, before and subsequent
to the Revolution, was about seventeen years. The
labors of the Reporter, however, had not yet been
invoked, and hence the record of this portion of his
judicial career is meagre.
One of his decisions, as relating to an interesting
event in the history of Massachusetts, will naturally
arrest the reader's attention. The Constitution of
that State, in the first article of the Bill of Rights,
declared that all men were born free and equal, and
had certain natural, essential, and unalienable rights,
etc' This general axiom, Cushing held, operated,
per se, to abolish slavery in Massachusetts. The case
is thus reported.
At the April term of the Superior Court, held at
Worcester, in 1783, Nathaniel Jennison -was tried for
assault and battery on one Quacks. ' The justification
is,' said the Chief Justice, in his charge to the jury,
' that Quacks is his slave ; and to prove it, it is said
that Quacks, when a child about nine months old,
with his father and mother, was sold, by bill of sale,
in 1754, about twenty-nine years ago, to Mr. Caldwell,
now deceased; that when he died. Quacks was ap
praised as part of the personal estate, and set off to
the widow in her share of the same ; that Dr. Jennison,
marrying her, was entitled to Quacks as his property ;
and, therefore, that he had a right to bring him home
when he ran away, and that the defendant only took
proper measures for that purpose. And the defend
ant's counsel also rely on some former laws of the
' This was the Constitution, adopted March 2, 1780.

32 LIFE OF WILLIAM CUSHING.
Province, which give countenance to slavery. As to
the doctrine of slavery, and the right of Christians to
hold Africans in perpetual servitude, and sell and
treat them as we do our horses and cattle, that /(it is
true) has been heretofore countenanced by the Pro
vince laws, but nowhere is it expressly enacted or
established. It has been a usage ; a usage which took
its origin from the practice of some of the European
nations, and the regulations of the British Govern
ment respecting the then Colonies for the benefit of
trade and wealth. But whatever sentiments have
formerly prevailed in this particular, -or slid, in upon
us by the example of others, a different idea has taken
place with the people of America, more favorable to
the natural rights of mankind, and to that innate
desire of liberty, with which Heaven, without regard
to color, complexion, or shape of feature, has inspired
all the human race. And upon this ground, our Con
stitution of Government, by which the people of this
Commonwealth have solemnly bound themselyes, sets
out with declaring that all men are born free and
equal, and that every subject is entitled to liberty, and
to have it guarded by the laws, as well as life and
property ; and, in short, is totally repugnant to the
idea of being born slaves.
'This being the, case, I think the idea of slavery is
inconsistent "with our own conduct and Constitution,
and. there can be no such thing as perpetual servitude
of a rational creature, unless his liberty is forfeited by
some criminal conduct, or given up by personal con
sent or contract.' . ,
Thus instructed, it is useless, perhaps, to add, that
the verdict of the jury was guilty, and that with this
trial slavery ceased to exist in Massachusetts. But,
however the reader may commend the result of the

CHIEF JUSTICE OF MASSACHUSETTS. 33
doctrine laid down by the Chief Justice, it may well
be questioned, whether the doctrine itself has any
adequate foundation. When the Constitution of
Massachusetts was adopted, slavery was an existing
institution of the State ; though, to be sure, its roots
had not struck deep, nor spread far. It had been
introduced in virtue of the commercial policy of the
mother country, was accepted by the Colony, and
regulated by its laws. Neither the Constitution nor
any subsequent legislation had undertaken to abolish
it. The general proposition asserted in the Bill of
Rights, that all men are born free, etc., did not exist
as a law for the Courts to expound and apply ; but as
a guide and land-mark for the Legislature. It might
be a ground for the abolition of slavery by legislative
authority; but could afford none, it would seem, for
its overthrow by judicial authority. The decision of
Judge Cushing, however, affected a system that was
fast expiring, indeed, that could hardly be said to
exist at all, and harmonized well with the general
sentiment of the community.
From the close of the Revolution until the year
1787, the Courts of Massachusetts had to tread a
rugged and difficult path. The war had entailed
on the State an enormous debt. Inclusive of its pro
portion of the Federal debt, the amount exceeded
fifteen millions of dollars. In addition to this, the
several towns had contracted debts, to meet the requi
sitions upon them, and furnish supplies for the troops.
Borne down by the pressure of taxation, and har-
rassed. by distraints and executions, the people
visited their exasperation on the Courts, through
whose instrumentality the claims upon them were
enforced. They had not expended their blood and
substance, in the late war, to secure a liberty which.
Vol. II. — 3

34 LIFE OF WILLIAM CUSHING.
with a strange inconsistency, should transfer them to
a jail, and their families to the alms-house. ' They
could not realize that they had shed their blood in
the field, to be worn out with burdensome taxes at
home; or that they had contended, to secure to their
creditors a right to drag them into courts and prisons.' '
The Shays' insurrection was the natural result of these
distresses and these feelings.
' The Courts and Judges were subjected during
these times to great annoyances, and occasionally to
much personal danger;' frequently, the court-houses
were surrounded and filled by people armed and
highly excited, and the Judges were refused admit
tance at the inns, or food either for themselves or
their horses. One occasion, in particular, has been
often mentioned, when the Judges were exposed to
imminent hazard of their lives. On arriving at the
inn of a town where the court was to be held, they
found the whole intervening space to the court-house
filled by a mob of many hundred, armed, and resolved
to prevent the opening of the court. The Chief Jus
tice was applied to by a committee from the mob, and
entreated to yield to their wishes ; he replied, that the
law appointed the court to be held at that time, and
it was their duty to hold it accordingly ; and, followed
by his Associates, he proceeded into the street. His
countenance was blanched to paleness, but his step
was firm. As he advanced, the crowd opened before
him, but slowly and sullenly ; muskets rattled, and
some bayonets rapped upon his breast; quietly and
firmly, however, he moved on, reached the court
house, and the court was regularly opened. The
respect and affection universally borne towards him
' Minot's History, p. 16.

CHIEF JUSTICE OF MASSACHUSETTS. 35
contributed, without doubt, in no slight degree, to
preserve the public support to the courts, and main
tain their authority in this crisis.' '
During all these scenes of tumult and disorder, it is
well attested that the Judiciary acted with becoming
dignity and firmness. That Cushing enjoyed the con
fidence and respect of the people, is sufficiently evinced
by the fact, that upon Governor Hancock declining a
re-election in the canvass of 1785, committees from
both parties invited the Chief Justice to be their
united candidate for the post. This honor, however,
he declined. Indeed, he steadily avoided, it would
seem, all posts that would withdraw him from the
Judiciary. In 1794, he was again solicited to be a
candidate for Governor of Massachusetts. ' Entre
nous,' thus he wrote his friend. Increase Sumner,
'some gentlemen have proposed to me to stand for
the first magistracy of our State ; but many weighty
reasons prompted me to decline the too high and
arduous task. There is our good Lieut. Governor,^
who stands in the direct line of promotion, and who
has waded through a sea of political troubles, and
grown old in labors for the good of his country ; why
not he?"
Cushing continued in the Supreme Court of Massa
chusetts, as Chief Justice, until the organization of the
Supreme Court of the United Slates, in 1789, when,
as we shall see in the next chapter, he was appointed
an Associate Justice of that tribunal.
' MS. Sketch, by Mr. Chas. C. Paine.
^ Samuel Adams, who was chosen Governor.
^ Memoir of Governor Increase Sumner, ' New England Genealo
gical Register,' p. 117.

36 LIFE OF WILLIAM CUSHING.

CHAPTER V.
1789-1796.
ASSOCIATE JUDGE OF THE SUPREME COURT
OF THE UNITED STATES.
The Constitution adopted by the Federal Con
vention, and submitted to the States for their rati
fication, received Cushing's approval and support.
He was elected a member of the Massachusetts
Convention from his native town of Scituate, and
took his seat in that body at its meeting in Janu
ary, 1788. Hancock was chosen President, and
Cushing Vice-President. In the absence of Han
cock, from ill-health, Cushing presided over the
deliberations of the Convention during a great part
of the session.
The Convention numbered three hundred and
sixty members ; and when they first came together,
a spirit strongly averse to the Constitution was
manifested ; and, on the final vote, only a majority
of nineteen was obtained in its favor. Owing to his
position, doubtless, as presiding officer, Cushing does
not appear to have participated in the discussions
which distinguished the sessions of the Convention.
The Constitution ratified by the requisite number
of States, Washington was called by the universal
voice of his countrymen to the highest post in the
new government. At the election in Massachusetts,
Cushing was chosen one of the Electors of President
and Vice-President ; and on the organization of the

U. S. ASSOCIATE JUDGE. 37
Federal Government, he was appointed one of the
Associate Justices of the Supreme Court.'
His commission was dated September 27, 1789.'
He was present at the first term of the Supreme
Court, held at New York, in February, 1790. It was
probably his first appearance in that city; and he
was accustomed to relate the following anecdote con
cerning it. We have elsewhere mentioned that he
was among the last to give up the old-fashioned judicial
wig. He wore it on this occasion, unconscious that its
appearance was singular; but while walking in the
street he noticed that about a hundred boys followed
him, with marked attention and perfect silence. He
thought it odd ; but the incident excited little of his
notice. At length, turning a corner, he was met by
as many more, who turned around to another crowd
behind them, and exclaimed, 'Hurrah ! here he is!'
This could not but excite more of his attention; but
although it was apparent that he was the subject of
the exclamation, he was utterly at a loss to divine the
cause of it; but a sailor passing accidentally, and
noticing the crowd, soon directed his eyes to the object
f their attention. The sailor, too, was astonished,
and involuntarily exclaimed, ' My eyes ! what a wig ! '
Cushing was now let into the secret, and returning to
his lodgings, sent for a peruke-maker, and obtained a
more fashionable covering for his head. He never
again wore the professional wig.^
We have elsewhere stated^ that the first terms of
' See vol. i. of this work, pp. 383, 621
' The Associate Judges, and in the order of their appointment,
were, Rutledge, Wilson, Cushing, Harrison, and Blair.
' Address of J. D. Hopkins, before the Cumberland Bar of Maine,
1833. ' Vol. i., p. 384.

38 LIFE OF WILLIAM CUSHINNG.
the Supreme Court were attended with little or no
business. Meanwhile, agreeably to the provisions of
the Judiciary bill, Circuit Courts were held twice a
year in each of the judicial districts. Much of the
time of a judge in those days was spent in travelling;
there were no railroads, and the best common roads
were bad. While on the State bench, Cushing's rides
extended into Maine, then a part of Massachusetts ;
and on the United States bench, as the circuits were
then annually changed, he travelled over the whole
Union, holding courts in Virginia, the Carolinas, and
Georgia. His travelling equipage was a four-wheeled
phaBton, drawn by a pair of horses ; which he drove.
It was remarkable for its many ingenious arrange
ments (all of his contrivance) for carrying books,
choice groceries, and other comforts. Mrs. Cushing
always accompanied him, and generally read aloud
while riding. His faithful servant, Prince, a jet-black
Negro, whose parents had been slaves in the family,
and who loved his master with unbounded affection,
followed behind, in a one-horse vehicle, with the
baggage.' We shall now submit to the reader several of Cush
ing's judgments, while on the bench of the Supreme
Court, which furnish, perhaps, the best criterion, that
we possess, to form an opinion of his learning and
ability. In the case of Chisholm v. Georgia,^ which involved
the question, whether a State can be sued by a citizen
of another State, he concurred in the affirmative
opinion of the Court. He thought it resulted clearly
from the letter of the Constitution, and was equally
consistent with its spirit. To the suggestion, that
'C.C. Paine. » 2 Dallas, 419.

U. S. ASSOCIATE JUDGE. 39
this would reduce the States to mere corporations, and
take away all sovereignty, he thus replied : —
'As to corporations, all States whatever are cor
porations or bodies politic. The only question is,
what are their powers? As to individual States and
the United States, the Constitution marks the bound
aries of powers. Whatever power is deposited with
the Union by the people for their own necessary
security, is so far a curtailing of the power and prero
gatives of States. This is, as it were, a self-evident
proposition; at least it cannot be contested. Thus
the power of declaring war, making peace, raising and
supporting armies for public defence, levying duties,
excised and taxes, if necessary, with many other
powers, are lodged in Congress ; and are a most
essential abridgment of State sovereignty. Again, the
restrictions upon States : ' No State shall enter into
any treaty, alliance, or confederation, coin money,
emit bills of credit, make any thing but gold and silver
a tender in payment of debts, or pass any law impairing
the obligation of contracts ;' these, with a number of
others, are important restrictions of the power of
States, and were thought necessary to maintain the
Union ; and to establish some fundamental, uniform
principles of public justice, throughout the whole
Union. So that, I think, no argument of force can be
taken from the sovereignty of States. Where it has
been abridged, it was thought necessary for the greater,
indispensable good of the whole.'
We have elsewhere observed, that the decision in
this case caused great alarm, and led to an amendment
of the Constitution.'
In the case of Ware v. Hylton,^ a case equally dis-
¦ See vol. i., p. 388. " 3 Dallas, 199.

40 LIFE OF WILLIAM CUSHING.
tinguished for the important question involved, and
the rare ability with which it was argued, Cushing
discussed the point in issue with great force and clear
ness. That point was, whether the act of Virginia,
passed during the war, sequestering British debts, was
a bar to their recovery, notwithstanding the Treaty of
1783 provided that creditors on either side should
meet with no lawful impediment to the recovery of
the full value, in sterling money, of all hona fide debts
theretofore contracted. Cushing held, with the ma
jority of the Court, that the Treaty revived the debts
in favor of the creditors, and removed the bar to a
recovery which the law of Virginia had interposed.
' I shall not,' said he, ' question the right of a
State to confiscate debts. Here is an act of the
Assembly of Virginia, passed in 1777, respecting
debts; which, contemplating to prevent the enemy
deriving strength by the receipt of them during the
war, provides that if any British debtor will pay his
debt into the Loan Office, obtain a certificate and
receipt as directed, he shall be discharged from so
much of the debt. But an intent is expressed in the
act not to confiscate, unless Great Britain should set
the example. This act, it is said, works a discharge
and a bar to the payer. If such payment is to be
considered as a discharge, or a bar, so long as the
act had force, the question occurs, — Was there a
power, by the treaty, supposing it contained proper
Avords, entirely to remove this law, and this bar, out
of the creditor's way ? '
The power he deemed undeniable, 'the treaty
having been sanctioned, in all its parts, by the Consti
tution of the United States, as the supreme law of the
land. Then arises the great question, upon the im
port of the fourth article of the treaty ; and to me, the

U. S. ASSOCIATE JUDGE. 41
plain and obvious meaning of it goes to nullify,
ah initio, all laws, or the impediments of any law, as
far as they might have been designed to impair or
impede the creditor's right or remedy against the
original debtor. . . . The article, speaking of creditors,
and hona fide debts heretofore contracted, plainly con
templates debts, as originally contracted, and creditors
and original debtors ; removing out of the way all
legal impediments ; so that a recovery might be had,
as if no such laws had particularly interposed. The
words, ' recovery of the full value in sterling money,'
if they have force or meaning, must annihilate all
tender-laws, making any thing a tender, but sterling
money ; and the other words, or at least the whole
taken together, must, in like manner, remove all other
impediments of law, aimed at the recovery of those
debts. What has some force to confirm this -construc
tion, is the sense of all Europe, that such debts could
not be touched by States, without a breach of public
faith ; and for that, and other reasons, no doubt, this
provision was insisted upon, in full latitude, by the
British negotiators'. If the sense of the article be, as
stated, it obviates, at once, all the ingenious, meta
physical, reasoning and refinement upon the words,
debt, discharge, extinguishment, and affords an answer
to the decision made in the time of the interregnum —
that payment to the sequesters, was payment to the
creditor. A State may make what rules it pleases ;
and those rules must necessarily have place within
itself. But here is a treaty, the supreme law, which
overrules all State laws upon the subject, to all intents
and purposes ; and that makes the difference. Diverse
objections are made to this construction : that it is an
odious one, and, as such, ought to be avoided; that
treaties regard the existing state of things; that it

42 LIFE OF WILLIAM CUSHING.
would carry an imputation upon public faith; that it
is founded upon the power of eminent domain, which
ought not to be exercised, but upon the most urgent
occasions; that the negotiators themselves did not
think they had power to repeal laws of confiscation ;
because they, by the fifth article, only agreed, that
Congress should recommend a repeal to the States.'
These objections Judge Cushing answers seriatim.
'As to the rule respecting odious constructions,' said
he, ' that takes place where the meaning is doubtful,
not where it is clear, as I think it is in this case.
But it can hardly be considered as an odious thing, to
inforce the payment of an honest debt, according to
the true intent and meaning of the parties contract
ing; especially if, as in this case, the State having
received the money, is bound in justice and honor, to
indemnify the debtor, for what it in fact received.
In whatever other lights this act of Assembly may be
reviewed, I consider it in one, as containing a strong
implied engagement, on the part of the State, to
indemnify every .one who should pay money under it,
pursuant to the invitation it held out. . . .
' The provision, that ' creditors shall meet with no
lawful impediment,' &c., is as absolute, unconditional,
and peremptory, as words can well express, and made
not to depend on the will and pleasure, or the
optional conduct of any body of men whatever. To
effect the object intended, there is no want of proper
and strong language ; there is no want of power, the
treaty being sanctioned as the supreme law, by the
Constitution of the United States, which nobody pre
tends to deny to be paramount and controlling to all
State laws, and even State constitutions, whensoever
they interfere or disagree.'

U. S. ASSOCIATE JUDGE. 43
In the case of Penhallow v. Doane,' — a case of no
special interest at this day, and only cited to give the
reader an opportunity to see how Judge Cushing deals
with legal subjects — this, among other points, was
presented to the Court : whether the Court of Appeals,
erected by the Continental Congress, had authority to
reverse the sentences given in the Courts of Admiralty
of the several States ?
Gushing, Justice. — ' I concur with the rest of the
Court, that the Court of Appeals, being a court under
the Confederation of 1781, of all the States, and being
a court for "determining finally, appeals in all cases
of capture," and so being the highest court, the dernier
resort in all such cases, their decision upon the juris
diction and upon the merits of the cause, having
heard the parties by their counsel, must be final and
conclusive, to this, and all other courts. To this, as
a Court of Admiralty, because it is a court of the
same kind, as far as relates to prize, and without any
controlling or revisionary powers over it. To this,
as a Court of Common Law, because it is entirely a
prize-matter, and not of common law cognizance.
The cases, therefore, cited to show, that the common
law is of general jurisdiction, and that the Court of
King's Bench prohibits, controls, and keeps within
their line. Admiralty courts. Spiritual courts, and other
courts of a special, limited jurisdiction, do not, I con
ceive, touch this case. It is conceded by all, that the
decision of a court competent is final and binding.
Now, if the Court of Appeals was, under the Confede
ration of all the States, a court constituted "for deter
mining finally appeals in all cases of capture," it was
a court competent ; and they have decided. Again ;
' 3 Dallas, 54.

44 LIFE OF WILLIAM GUSHING.
the Admiralty of England; why not equal reason
here ? . . .
'As to the original question of the powers of Con
gress, respecting captures, much has been well and
eloquently said on both sides. I have no doubt of the
sovereignty of the States, saving the powers delegated
to Congress, being such as were "proper and neces
sary" to carry on, unitedly, the common defence in
the open war that was carried on against this country,
and in support of their liberties to the end of the
contest. But, as has been said, I conceive we are
concluded upon that point, by a decision heretofore
made. ' The second exception in error is, that the sentence
of the Court of Appeals was void by the death of
Mr. Doane. That fact does not appear upon the
record of the Court of Appeals, and I think we cannot
reverse the decree in this incidental way, if it could
be done by writ of error. If it was pleadable in
abatement, it ought to have been pleaded as suggested
there by the opposite party. On the contrary, it is
implied by the record, that Doane was alive ; other
wise he could not have been heard by his counsel, as
the record sets forth; for a dead man could not have
counsel or attorney. On the other hand, the letters
of administration imply that he was dead at the time;
but those letters were not before the Court, and there
fore could not be a ground for their abating the suit,
if it was abateable at all for such a cause. Here
seems to be record against record, as far as implica
tions go, and I take it to be an error in fact, for
which, by the judicial act, there is to be no reversal.
Upon this head, a case in Sir Thos. Raymond is cited
by the counsel for the plaintiff in error, of trover by
five plaintiffs — one dies — the rest proceed to verdict

U. S. ASSOCIATE JUDGE. 45
and judgment — and adjudged error, because every
man is to recover according to the right he has at
the time of bringing the action ; and here each one
was not, at the time of bringing the action, entitled to
so much as at the death of one of the plaintiffs. But
a case in Chancery Gases, p. 122, is more in point, —
where money was made payable by the decree to a
man that was dead, and yet adjudged, among other
things, no error. But another matter, which seems
well to rule this case, is, that, being a suit in rem,
death does not abate it.'
These few specimens of Cushing's judicial judgments
will enable the reader to form an estimate of his
general ability. His mind was evidently well adapted
to pursue legal investigations. 'As a judge,' says the
Rev. Samuel Deane, 'he -vyas eminently qualified by
his learning, and not less by his unshaken integrity
and deliberate temper. The writer of this notice first
saw him on the bench in 1801, when his zenith bright
ness had probably abated, but he still remembers how
forcibly his youthful mind was affected by the order
and perspicuity with which he performed the duties
of his high office, and the mild though commanding
dignity with which he guided the bar.''
With his acknowledged high qualities as a judge,
and his eminent worth as a man, the reader will not
be surprised, that, he enjoyed the confidence and
friendship of Washington ; nor, as we shall see in the
next chapter, that he was appointed by him to the
highest post in the Judiciary.
' History of Scituate, p, 257.

46 LIFE OF WILLIAM CUSHING.

CHAPTER VI.
1796-1810.
CHIEF JUSTICE OF THE UNITED STATES.
During Chief Justice Jay's absence in England, in
the years 1794 and '95, negotiating the Treaty which
has since borne his name, Cushing presided in his
stead; and after the rejection of Rutledge, as we have
related in a preceding volume, he was nominated to
the Chief Justiceship, and unanimously confirmed.
On the day this occurred, there was a large dinner
party at the President's. Cushing was one of the
guests. On entering the dining-room, Washington,
from the head of the table, directing his look to him,
said in an emphatic tone, ' the Chief Justice of the
United States will please take his seat on my right.'
The Judge had heard nothing of the nomination, and
was much affected at the announcement. His com
mission was made out, which he received the next
day, and held for about a Aveek, when, upon the
ground of ill-health, he determined to resign it.
Washington, for whom he entertained a profound
veneration, endeavored to dissuade him from his
purpose ; but without avail.
As Cushing never actually presided as Chief Justice,
the reader may doubt, whether, stricti juris, he ever
held the office. If, however, he accepted the appoint-

U. S. CHIEF JUSTICE. 47
ment, it is not material to the question, whether he
discharged its duties. If, in taking his commission, he
intimated his purpose to hold it; that is sufficient.
Indeed, the mere act of receiving it, might, under the
circumstances, manifest such purpose; and from that
moment, he would be, de jure. Chief Justice. At any
rate, all the obvious steps of the process were com
plete.; he was nominated, confirmed, and commis
sioned.' Hence, in a work of this character, we should
hardly feel justified in omitting a sketch of his life.
In politics, Cushing belonged to the Federal party,
and shared its detestation of the excesses of the French
Revolution, as well as its general opinion in favor of
the alien and sedition laws. In a charge delivered to
the Grand Jury of the District of Virginia, September
23d, 1798, he portrayed the horrors of the French
Revolution, admonished them to be on their guard
against French wiles, and the ' plot against the rights
of nations and of mankind, and against all religion
and virtue, order and decency.' He defended the
sedition law, on the ground that it ameliorated the
English law, by ' allowing the party accused to prove
the truth of his assertions;' and upheld, with equal
decision, the alien law.^ The mildness of his char
racter, however, the general moderation of his senti
ments, together with his incapacity to entertain the
acrimonious feelings that mingled with the political
differences of the time, preserved him from the shafts
of party -warfare. 'He had,' says his friend, Mr.
Deane, ' a felicity of manner, and an unblemished
dignity of character, which enabled him to be open
and decisive, without kindling the rage of opposition.
' Vide Marbury o. Madison, Cranch's Reports, vol. i., p. 158.
* Deane's Scituate, p. 405, note.

48 LIFE OF WILLIAM CUSHING.
Cushing continued on the Bench till his death,
which occurred September 13th, 1810, in the seventy-
eighth year of his age. Ill-health interfered some
what, in the latter years of his life, with the perform
ance of his judicial duties, and, at his death, the
business of his Court was a good deal in arrear.
Indeed, he had prepared a letter of resignation of his
office ; ' but was called to resign life.'

CONCLUSION. 49

CHAPTER VIL
CONCLUSION.
Judge Cushing was of good stature, erect, graceful,
and dignified. His complexion was fair, his eyes blue,
and brilliant, his nose aquiline. In his dress, he ad
hered to the style of the Revolution ; wearing a three-
cornered hat, and small-clothes, with buckles in his
shoes. ' In his bearing and manner,' says Dr. Kendall,
' he was a gentleman of the old chool, dignified, and
yet affable and courteous in his conversation 
As a politician, he was a Federalist, of the Washington
school." In private life he was universally beloved. The
suavity of his manner, the moderation of his temper,
his kindliness, purity, and simplicity, attracted and
fixed the regards of all who knew him. He had a
cheerful temperament, social disposition, and excelled
in conversation. He looked on the bright side of
human nature, was tender of private character, and
equally unknown and incapable to say an unkind
word of any one. When obliged to speak unfavor
ably of a person, it was often observed, that he inva
riably added something to his advantage. ' He was
all that was amiable,' says Mr. Deane, ' always ready
to instruct by useful discourse, and to make his friends
happy by his cheerfulness.'^ He was distinguished
for his liberal hospitality. With the long journeys he
' MS. Letter to the Author. = History of Scituate, p. 257.
Vol. IL— 4

60 LIFE OF WILLIAM CUSHING.
was obliged to take, he had but little time, in each
year, to be at home ; but, while there, ' his mansion
was a place of resort, not only by his fellow towns
men, but also by citizens of the neighboring towns and
cities." His family attachments were strong, and
having no children, ' his house was usually filled with
his own and his wife's relations, who were numerous,
and whom he always took great pleasure in seeing.' ^
His fortune was easy; consisting, in good part, of real
estate. Cushing's intellectual qualities were not of an
extraordinary cast; but eminently respectable. He
was of a singularly unaspiring nature ; a man of peace,
and averse to controversy. He neither opposed the
mighty, nor went about to stop the current of a river.
As we have already observed, his legal knowledge
was extensive and accurate ; and he enjoyed the con
fidence and respect of the Bar. His mind was strong,
but sluggish. 'It was once said of him, that he had
fine ideas in his head ; but it required a beetle and
wedge to get them out.' ^ He possessed literary tastes,
'and if we may judge by the numerous notes written
with his own hand in margins, he read with the greatest
care. He was a learned theologian ; well acquainted
with the controversies of the day, and though far from
gathering heat in those controversies, he was conspicu
ously on the side of liberal Christianity. He used to
speak of his acquaintance with Dr. Priestley, as a happy
era of his life, and to read and talk of his works with
approbation.' *
To this summary of Cushing's qualities, we are
happy to add, from the pen of the venerable Josiah
' Rev. Dr. Kendall. ' Mr. C. C. Paine. " Ibid.
' Deane's History of Scituate, pp. 257, 258.

CONCLUSION. 51
.Quincy, who has challenged, throughout a long and
eminent career, the homage of all who reverence truth,
courage, learning, and eloquence, the following por
traiture of his moral and intellectual character :
'My acquaintance with Judge William Cushing,'
says Mr. Quincy, ' was slight and occasional, and my
impressions of his character were derived chiefly from
observing him in Court, and from the information of
others. His legal attainments were of high rank.
His judgment sound, his habits laborious, and devoted
to the duties of his occupation and station. His virtues
of the pilgrim cast ; pure in morals and inflexible in
principle. But he was ambitious neither of literary
nor political distinction. His nervous system was deli
cate, averse to all controversies, except those in which
the pursuits of his profession involved him. In politics
he took no active part ; but they were conservative
and decided. The friend of such men as John Adams,
Francis Dana, and Oliver Ellsworth, all of whom enter
tained for him the highest respect, could not be other
wise than of an elevated cast of intellect and moral
power. But the habits of his life were retired, and he
sought his happiness in domestic life ; desirous rather
to be useful than to be known. Such are the general
views I entertain of his character.' '
' MS. Letter to the Author.

THE LIFE

OF

OLIYER ELLSWORTH

(53)

THE

LIFE OF OLIVER ELLSWORTH,

CHAPTER L
HIS ANCESTRY.
Josiah Ellsworth, the first of his name who came
to this country, was a native, it is supposed, of York
shire, England. He settled at Windsor, in Connecti
cut, about the year 1650. He was but twenty-one
at the time; and was known to his neighbors as
Sergeant Ellsworth. The conjecture that he came
from Yorkshire, is derived from Mr. John Ellsworth,
who was a respectable merchant in London, at the
beginning of the present century. He stated that it
was a tradition in his family, which had long resided
in Yorkshire, that a member of it had formerly re
moved to foreign parts; that he was a young man
when he left, and had never returned. This tra
dition, it is supposed, indicates the first of the Con
necticut Ellsworths.
The name itself is derived from that of a small
village a few miles from Cambridge, in England.
This village is situated on a rivulet, once remark
able for Eels. Hence, as the Saxon word, worth,
(55)

56 LIFE OF OLIVER ELLSWORTH.
signified place, the village was originally called EeU-
worth; but afterwards, Ellsworth. And, as the cus
tom formerly was for the first settler in a new place
to take the name of the settlement, we have, in that
circumstance, the origin of the family name.
Josiah Ellsworth, of whom we have but little in
formation, continued to reside in Windsor until his
death, which occurred in 1689. He left nine children.
John, his fourth son, married and settled in Elling
ton, a township near Windsor. He had two sons,
called John and David.
David was a respectable farmer, and lived in Wind
sor. He married Jemimah Leavitt, a lady of excellent
character, good mind, and pious principles.

HIS BIRTH AND EDUCATION. 57

CHAPTER II.
1745-1771.
HIS BIRTH AND EDUCATION.
Oliver Ellsworth, an honored name in American
history, was the son of David and Jemimah Ellsworth,
and born at Windsor, Connecticut, on the 29th day of
April, in the year 1745. His early years were passed
on his father's farm, and, doubtless, gave no more
indication of future distinction and usefulness than
the childhood of his obscure playmates. Indeed, his
mind developed slowly, and did not discover its dis
tinguishing qualities until mature age. We have,
therefore, no tales of precocity to relate, no marvellous
feats, nothing to excite wonder or provoke incredulity.
Like the sons of other farmers, he had the benefit of
country life, air and exercise ; advantages by no
means to be despised. 'It may be thought whimsical,
but it is truth,' says Goldsmith, 'I have found by
experience, that they who have spent all their lives
in cities, contract not only an effeminacy of habit, but
even of thinking.' '
Young Ellsworth owed his opportunities of educa
tion to the strong desire that possessed his father that
he should be a minister. While a lad he was placed
under the instruction of Dr. Bellamy, a clergyman of
considerable eminence, with whom he pursued the
studies preparatory to his college course. At the age
' The Bee, No. VI.

58 LIFE OF OLIVER ELLSWORTH.
of seventeen he entered Yale College, and remained
a member of that institution for two years, when he
removed to Nassau Hall, Princeton. This respectable
college, at that time, was under the charge of Presi
dent Finley, a gentleman of distinguished abilities as
a preacher. He had greatly assisted Whitefield in his
itinerant labors ; and while thus employed was once
seized by the civil authorities, at New Haven, Con
necticut, and carried out of the Colony as a vagrant,
under a law which prohibited itinerants from preach
ing in any parish without the consent of its settled
minister. Among the few incidents that have been preserved
of this portion of Ellsworth's life, the following anecdote
is, perhaps, most characteristic. It indicates a turn
for special pleading, which might betoken the future
lawyer. The students were prohibited to wear their
hats within the college yard. Ellsworth, on one
occasion, was arraigned for violating this law of the
institution. He defended himself upon the ground
that a hat was composed of two parts, the crown and
the brim, and as his hat had no brim, which by the
bye he had torn off, he could be guilty of no offence.
This ingenious plea seems to have satisfied the scru
ples of his judges, and he escaped all punishment.
We may add, that he was more remarked during
his residence at college for his sportive disposition,
and the interest he took in the college politics, than
for any uncommon proficiency in the college course
of study. His rank as a scholar, however, was respect
able. He graduated in the year 1766, and received
the degree of A. M.'
' From a statement in The National Portrait Gallery, it would
seem that, after leaving college, he was employed as a teacher; but
where, for what time, and with what success, does not appear.

HIS BIRTH AND EDUCATION. 59
In obedience to the earnest wish of his father,
rather than from any predilection of his own, he com
menced the study of theology with Doctor Sm alley, a
Connecticut clergyman of considerable local distinc
tion. But points of faith had much less attraction for
him than points of law; and the contests of the bar
were more alluring than the prelections of the pulpit.
It was not long before his father discovered that
Oliver, in spite of entreaty, persuasion, or remon
strance, was determined to renounce the prospective
dignity and glory of a village pastor, and seek his dis
tinction in the paths of jurisprudence. He yielded, at
length, to the wishes of his son, and after a year's
study of theology, the embryo minister began the con
genial study of the law.
His instructors in the lore of his future profes
sion w^ere the first Governor Griswold, with whom,
and subsequently with Judge Root of Coventry, he
pursued and completed his course of studies. The
difficulties that beset the law at this time did not
prove a source of discouragement to him.' He opposed
to them perseverance and love of the pursuit. His
text books, it is said, were Bacon's Abridgement and
Jacobs' Law Dictionary, which he read attentively,
and was then, viz., in 1771, called to the bar.
His education had not been obtained without incur
ring some pecuniary obligations, of which he deter
mined, before beginning his career as a lawyer, to
relieve himself. He possessed in his own right,
whether by gift or otherwise I am uninformed, a
tract of unimproved land on the Connecticut river,
solely valuable for its timber. This, in vain, he
attempted to sell. But, if land was not marketable,
' Vide vol i., pp. 34,437.

60 LIFE OF OLIVER ELLSWORTH.
wood was. Hence, instead of opening an office, and
relying upon the uncertain gains of his profession to
discharge his indebtedness, he proceeded to the forest
with axe and woodman's rig, and in the course of a
few months cut, and transported down the river to
Hartford, wood enough to pay his debts. Resolution
like this, in any walk of life, merits, if it does not
always ensure, success.'
' Mr. Joseph Wood, from whose MS. I have obtained this
anecdote, thus writes me respecting it: — 'The fact concerning
the woodland owned by him, I had from a gentleman who formerly
resided in East Windsor, and was well acquainted with Judge E.,
and who lately died in this city,' over eighty years of age. He was
not certain whether his father gave it to him, or he obtained it by
his own exertions.' Oct. 5th, 1855.
' Mew Haven.

HIS PRACTICE AT THE BAR. 61

CHAPTER III.
1771-1784.
HIS PRACTICE AT THE BAR.
Unmindful of the legal prescription that 'Mistress
Common-Law should lye alone,' Ellsworth, soon after
being called to the bar, married Miss Abigail Wolcott,
a daughter of Mr. William Wolcott, of East Wind
sor. The Wolcotts were a very respectable family
in Connecticut ; the grandfather of Miss Abigail,
though not deriving his birth 'from loins enthroned
or princes of the earth,' had by his energy and abilities
obtained wealth and honorable position in the Colony.
But social differences, in a community where there
was great equality of manners, were scarcely discern
ible, and constituted but a trifling obstacle to matri
monial unions; — good character, industrious habits,
and mutual love, being the important and prevailing
considerations. At the time of his marriage it does not appear
that the heart of Counsellor Ellsworth had yet been
gladdened by a single fee. Though love is said to be
blind, it has nevertheless very good powers of degluti
tion; and it was obvious to the pious and practical
mind of David Ellsworth, that his son Oliver would
require a more substantial diet than either Themis or
Hymen promised to bestow. Accordingly, he offered
him the lease of a small farm, in a wild, uncultivated

I I

62 LIFE OF OLIVER ELLSWORTH.
state, that he owned in the north-west part of Wind
sor, in the parish of Wintonbury, which the sagacious
attorney wisely accepted.
In this retired spot, he began his professional
career. He had scarcely money enough, it is stated,
when he went to live at the farm, to buy a load of
rails. ' The materials with which the fences of his
farm were to be constructed he wrought with his own
hands from the trees that grew upon it, nor remitted
this branch of labor until it was completely enclosed."
He was compelled for several years, to rely almost
wholly upon his agricultural labors for his support.
His profession, which in the future was to be the
source of fame and fortune, proved, during the first
years of his practice, but a barren sceptre in his
hands. He declared, that three pounds, Connecticut
money, per annum, was the extent of his professional
receipts for the first three years after being called to
the bar. His circumstances were altogether unpro
mising and discouraging. He was too poor to keep
either a horse or servant. His farm was situated
about ten miles from Hartford, whither, when the
Court was in session, he walked every morning, and
returned in the same manner at night. One day,
while going or returning from Court, he was met by
a friend in his carriage, who asked him, ' why he
went on foot so much?' 'Ah! friend W  ,' said
Ellsworth, ' we must all walk at some period of our
lives, and I choose to do my walking in my younger
days, while I am able.'^ A significant reply, con
sidering that the situation of the two friends •was sub
sequently reversed.
Ellsworth's superior abilities seem to have been
' The National Portrait Gallery, vol. iv., art. Ellsworth.
' MS. by Mr. Wood.

HIS PRACTICE AT THE BAR. 63
unsuspected ; but time sets all things even. The
opportunity at length occurred, to discover to his
neighbors what manner of stuff he was of He was
employed in a suit of some importance ; and so ably
and successfully did he conduct it, that he obtained a
verdict for his client, and secured the favor of the
community. 'He no longer went to Court with an
empty docket.'' It was, I presume, during the trial
of this cause, that he heard a stranger enquire, ' Who
is that young man? — he speaks well;' — words of
encouragement that were not unheeded or barren of
fruit. They inspired confidence and hope. ' Of this
incident he spoke, even in his latest years, to his
children.' ' His prospects brightened. Clients gradu
ally increased ; he was drawn from the obscurity in
which he had hitherto been buried, and, in place of
the scanty and meagre income, the joint product of
manual toil and insignificant and occasional profes
sional employment, it was not long before he had
a large and lucrative practice.
Not very long after his first successful appearance
at the bar, Ellsworth abandoned his little farm, with
no violent regret we may well suppose, and took up
his residence in Hartford.^ He was soon appointed
State's Attorney, an office of considerable emolument,
which he held for several years. From this time,
until public employments withdrew him from his pro
fession, it is probable that Oliver Ellsworth had a
larger practice than any lawyer of his day; at any
rate than any of his cotemporaries of the Connecticut
bar. The late Noah Webster, who was a student in
Ellsworth's office, at the period of which we now
speak, has stated that his docket frequently numbered
' MS. by Mr. Wood. ' Nat. Portrait Gall., vol. iv., art. Ellsworth.
' This removal was probably in the autumn of 1775.

64 LIFE OF OLIVER ELLSWORTH.
from a thousand to fifteen hundred cases; and that
during the sessions of the courts his mind was sub
jected to a constant strain ; there being scarcely a case
tried in which he was not of counsel.'
In the preparation and trial of a cause, he discovered
great tact, great powers of logic, great energy and
earnestness of elocution. As an advocate, he stood at
the head of the Connecticut bar. He was not, to be
sure, deeply versed in the varied lore of his profession,
nor had the circumstances of his life been propitious
to any general acquisition of knowledge. But, ' 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.' ^
After he had obtained reputation both in profes
sional and political life, a friend asked him what was
the secret of his intellectual power. He said, in reply,
that early in his career he discovered that he had no
imagination ; that the qualities of his mind promised
so little that he became almost discouraged; that he
then determined to study but one subject at a time,
and not abandon it until he had fully mastered it.
He said also, that in the practice of his profession he
had, as a rule, given his attention to the main points
' The inhabitants of Connecticut, during the latter part of the last
century, were somewhat noted for their litigious spirit; and this cir
cumstance may serve to explain the unusual number of cases on Ells
worth's docket.
* Analectic Magazine, vol. iii., p. 385. This sketch of Ellsworth,
though not full, and sometimes inaccurate in the detail of facts, is
admirable in point of style, just in delineation of character, and
instructive in reflection and remark. The writer steers clear of the
beaten track of eulogy, and has the courage to distinguish and dis
criminate.

HIS PRACTICEAT THE BAR. 65
of a case, leaving the minor ones to shift for them
selves. This concentratioti of mind will carry far even an
ordinary man ; but Ellsworth's endowments, though
wanting imagination, that central, combining and
generalizing faculty, were not the endowments of an
ordinary man. He had penetration, powers of dis
crimination and analysis, that enabled him to unfold
with precision and perspicuity the difficulties of a
question, to strip sophistry of its disguises, and main
tain the view he wished to enforce. He did not, to
be sure, either at the bar or in the senate, ' bring to
the consideration of his subject that fertility of mind,
and opulence of knowledge, which enable their pos
sessor to examine his subject in every possible point
of view, and to make every kind of information in
some degree tributary to the investigation ; but, like
most men of powerful intellect, but little general cul
tivation, he seized at once upon the strongest point,
and left it for no other. He did not enter the field
of controversy in the glittering panoply of science,
wielding at pleasure all her arms, but, like Hercules
with his club, armed with a single weapon, but that
one, powerful and massy.''
All truly great men, all eminently successful men,
are earnest men. They do with their might what
their hands find to do. Thus it was with Ellsworth.
He was not an orator, in the meaning of the schools.
He had no glow of fancy, no grace, no splendor of
diction, no passages of beauty or might; but he had
an earnestness of tone, an energy of manner, direct
ness, and simplicity of language, that went home to
the hearts and understandings of his auditors. He
' Analectic Magazine, supra.
Vol. IL — 5

66 LIFE OF OLIVER ELLSWORTH.
frequently, says Dr. Dwight,(whoseredundancy of lan
guage and exaggeration of eulogy, however, renders it
necessary to take his statements, cum grano salis,)
' poured out floods of eloquence which were irresistible
and overwhelming.' His success with juries is said to
have been unrivalled. He did not weary them with
repetition and unnecessary detail. His concise, lucid
and forcible arguments fixed and held their attention.
Unlike his friend, Fisher Ames, he illustrated by a
diagram, and not by a picture. ' He stated his matter
skilfully and powerfully. He particularly excelled in
a most luminous explanation and display of his sub
ject.' '
'The remark has often been made by those who
were eye and ear witnesses of its truth, that Mr. Ells
worth's clear and vivid apprehension, and lucid state
ment of the facts involved in a case, would frequently
throw out a blaze of light that instantly dispelled all
doubts and difficulties, to the surprise and admiration
of every attendant.'^ In addition to intellectual ad
vantages, his bearing, though not after the model of
Chesterfield, was dignified and impressive, and his
character, from the outset, respected and esteemed.
Among the members of the Connecticut bar, with
Avhom Ellsworth came most frequently in collision,
was Doctor William Samuel Johnson, a son of Dr.
Johnson, the first President of King's College. John
son returned to Connecticut, from England, where he
had resided several years as agent of the Colony, the
very year Ellsworth was called to the bar. He was
an accomplished scholar, and while in England, was
' Burke of Townshend; and, if contemporary accounts may be
relied on, equally true of Ellsworth; though, to be sure, his style
could hardly bear comparison with that of the former.
' MS. by Mr. Joseph Wood.

HIS PRACTICE AT THE BAR. 67
intimate with his namesake. Dr. Samuel Johnson, and
his coterie of literary friends. He was also a learned
lawyer, and graceful orator. ' When Dr. Johhson rose
to address a jury,' said Trumbull, the author of McFin-
gall, ' the polish and beauty of his style, his smooth
and easy flow of words, and sweet, melodious voice,
accompanied with grace and elegance of person and
manner, delighted and charmed his hearers. But,
when Ellsworth rose, the jury soon began to drop
their heads, and, winking, looked up through their
eyebrows, while his eloquence seemed to drive every
idea into their very skulls in spite of them.' '
In concluding this chapter, we may add, that the
profits of Ellsworth's .practice were 'judiciously in
vested, and the fortune thus acquired was augmented,
by the economy and simplicity of his mode of life, to
a degree of wealth,' at that time, rare in Connecticut."
We may also further add, that after his withdrawal
from the bar, and 'during the greater part of his
public life, his family residence was at Windsor,
where he lived plainly and unostentatiously.'
' MS. by Mr. Joseph Wood. ^ Analectic Magazine, p. 397.
' Ibid., p. 400

68 LIFE OF OLIVER ELLSWORTH.

CHAPTER IV.
1775-178L
HIS POLITICAL CAREER — SERVICE IN CONGRESS.
It was well-nigh impossible for a rising young
lawyer, like Ellsworth, in the stirring times in which
he lived, to keep aloof from politics. The causes of
revolution, even before he had been called to the bar,
were exciting the fears, and arousing the resentment
of the Colonies. From the first .he took the side of
his countrymen, and throughout was a consistent and
persistent Whig. He is said, on one or two occasions,
when the enemy made incursions into Connecticut, to
have served with the militia of his native county;
but when this occurred, and whether he was ever in
any action, does not appear. In truth, his tastes were
not military, nor his talents fitted for that kind of
life. His first appearance on the stage of public affairs
Avas as a member of the General Assembly of Con
necticut, which assembled at Hartford in April, 1775,
a few days after the action at Lexington. He had
been chosen to represent his native town in that body.
The impending struggle between the mother-country
and her colonies, the spirit of resistance inflamed and
diffused by the blood shed at Lexington, at once led
the Connecticut Assembly to provide the means for
actual warfare. With William Pitkin, Thos. Seymour,

HIS POLITICAL CAREER. 69
and Ezekiel Williams, Ellsworth was appointed a com
mittee, called the pay-table, ' to examine, liquidate,
adjust, settle, and give all needful orders' for the pay
ment of accounts incurred for military purposes.
The duties of this committee were onerous, and,
together with his professional engagements, would
seem to have absorbed Ellsworth's time. His name
does not again appear as a member of the Assembly.
The details of this portion of his life, while presiding
at the pay-table, are meagre, and could afford but
little satisfaction to the reader, even if they were
complete. Adjusting accounts cannot be supposed to
afford very pleasurable occupation, even to the most
practical mind ; and doubtless, a journey to Albany
in the summer of 1776, to obtain from General
Schuyler a warrant for the re-payment of the various
sums expended for the Connecticut troops, who served
in Canada the previous year, was to Ellsworth an
agreeable relaxation.'
In October, 1777, he was elected by the Assembly
of Connecticut a Delegate to the Continental Con
gress. He had six colleagues, ' one or more' of whom
were empowered, when present, to represent the State.
Subsequently, the Assembly required the presence of
at least two of the delegates, in order to bind the
State by their votes. By this arrangement the dele
gates could serve in Congress, or remain at home, as
was mutually convenient. The arrangement, how
ever, was a very bad one, and calculated to impair
the usefulness of the representatives and impede the
public business. ' It may easily be shown,' thus wrote
Washington, on the 20th of August, 1780, 'that all
the misfortunes we have met with in the military
' He went by order of the Assembly.

70 LIFE OF OLIVER ELLSWORTH.
line, are to be attributed to short enlistments. A great
part of the embarrassments in the civil flow from the
same source. The derangement of the finances is
essentially to be ascribed to it.' ' The business of
legislation and the science of politics require long
experience and attentive study. How can a legis
lative body conceive and carry out a complete, con
nected system of policy, if its members are changed so
often, that anything like harmony of opinion, or intel
ligent comprehension of the points on which they
differ, is impossible? That people are best repre
sented, who, viewing the acts of their representatives
with watchful vigilance, continue them longest in ser
vice. Power to change, with wise forbearance to
exercise it, preserves the rights and promotes the
interests of the constituent.
Ellsworth did not take his seat in Congress until
October, 1778. He was nominally a member for six
years ; but, being at intervals relieved by some one
of his colleagues, his period of actual service did not
extend over two or three years. But these were
years of very peculiar interest and trial. Ruined
finances, distress in the army, cabal in the diplomatic
corps, dissensions in Congress, and inertness in the
States, — these were among the distinguishing features
of that gloomy period. The beginning of the Revolu
tion was its golden age. Then the mere recommenda
tions of Congress were scrupulously and vigilantly
executed. But four years later, when Ellsworth be
came a member of that body, its prestige had departed.
It was divided into cliques and factions. The public
were of opinion that the States 'were badly repre
sented, and the concerns of the nation horribly con-
' Gordon, vol. iii., p. 127.

SERVICE IN CONGRESS. 71
ducted.'' The public too, while blaming others, were
not exempt from blame themselves. They had be
come relaxed, and very feebly responded to the most
judicious acts of Congress. That body could adopt
measures, but had no power to enforce them — could
 ' utter oracles of dread.

Like Briar Bacon's brazen head.
But when a faction dared dispute 'em,
Had ne'er an arm to execute 'em.'
When Ellsworth came to Congress he was but little,
if at all, known beyond the limits of his native State,
and there his reputation was chiefly for skill and
ability as a lawyer. His political experience was the
experience of a novice; and we may well suppose that
his acquaintance with political science, as a theory?
was but trifling. His practice, since he had practice,
was absorbing; while his habit of confining his
thoughts to the immediate subject requiring his atten
tion, is inconsistent with the notion of any general or
discursive study. His faculties were something hard
and dry. They wanted flexibility, ease, and freedom
of movement, and did not readily adapt themselves to
new and various subjects. He did not, ' like Burke or
Hamilton, possess that opulent and redundant mind,
which, whatever may be the immediate subject of its
contemplation, pours forth without effort the full flood
of eloquence and reason, in large and various dis
course, fraught with knowledge, and rich in moral
and political wisdom.'^ But he had business talents
of a very high order, powers of investigation and
reflection, uncommon powers of argument, sound judg-
' Washington's Writings, vol. vi., p. 142, and ante, vol. i., p. 242.
^ Analectic Magazine, vol. iii., pp. 394, 395.

72 LIFE OF OLIVER ELLSWORTH.
ment, steady application, ardor and devotion in pur
suit of the public interests. While he continued in
Congress 'he was particularly distinguished for his
unyielding firmness and political courage, as well as
for his powers in debate, and unwearied application
in the discharge of public business.' ' His service in
the Continental Congress was an admirable prepara
tion for service in the Federal Convention and the
Senate of the United States, where he may be said to
have stood,  ' if not first, in the very first line.'
Soon after Ellsworth's appearance in Congress he
was appointed a member of two very important com
mittees, viz., the Marine Committee, and the Commit
tee of Appeals. The former, acting as a Board of
Admiralty, had general charge of all naval affairs;
and the latter heard and determined appeals from the
several admiralty courts established in the different
States, in cases of capture on the high seas. A case
of the latter kind was brought before the committee,
which, as it involved a conflict of decision and juris
diction, attracted much attention at the time, and
possesses features of interest even at the present day.
The following are the material facts : —
Gideon Olmstead and- others were captured by the
enemy, and sent to Jamaica. Here they were put on
board the Active, a British sloop, bound for New York
with supplies for the British forces. They were em
ployed in the navigation of the vessel; but in the
course of the voyage they rose upon the master and
crew, confined them to the cabin, and steered for New
Jersey. They proceeded safely until within sight of
' Analectic Magazine, vol. iii., p. 887.

SERVICE IN CONGRESS. 73
Egg Harbor, in that State, when they fell in with the
Convention, an American brig, which took possession
of the Active, and carried her to Philadelphia.
Obviously, Olmstead and his companions were enti
tled to the vessel, as their lawful prize ; but, on trial
of the question in the Admiralty of Pennsylvania,
they were only adjudged a fourth part, whilst the
residue was decreed to the officers and crew of the
Convention. From this decision Olmstead appealed.
The appeal was argued before the Committee of Ap
peals, and the judgment of the State court reversed :
the decree being that the Active should be condemned
as prize for the use of Olmstead and his companions.
But the Pennsylvania judge, on the cause being re
manded, contumaciously refused to execute this decree.
The committee, without power to carry into effect their
process, declined to proceed further in the matter;
but, subsequently, their decision was sustained and
enforced by the Supreme Court of the United States.'
In February, 1779, Ellsworth obtained leave of
absence, and returned home. He did not again ap
pear in Congress until the following December. His
letters to Governor Trumbull and Oliver Wolcott, sr.,
which we shall now lay before the reader, will show
the general character of the business that occupied
the attention of that body while he was a member of
it. His correspondence relates wholly to public affairs,
and is not distinguished for those striking observations
on men and things that impart to the letters of John
Adams a living and peculiar interest. He had none
of the passions that glowed in the breast of Adams,
and gave animation and color to everything that fell
from his lips or pen. Nor had he cultivated the art
' Vide U. S. vs Peters', 5 Cranch Reports, 115.

74 LIFE OF OLIVER ELLSWORTH.
of writing. His spoken style was superior to his
written. His letters do not attract by any grace or
vigor of expression. His meaning, however, is never
dubious. When Ellsworth returned to Congress, in December,
1779, the army were suffering the greatest privations.
The Continental money had become so depreciated
that it was wholly inadequate to the purchase of sup
plies. At one time, there was no bread in the camp
for several days; and during the 'last week of Decem
ber, and until the 8th of January, both officers and
men were almost famishing through want." Without
money and without credit. Congress now determined
to make requisitions on the several States for specific
supplies. A committee was appointed to report the
quantities and kinds of supply each State ought to
furnish as its quota. Of this committee EUswoi'th
was a member. Their report was substantially adopted
by Congress. Meanwhile Washington had been com
pelled to adopt a very decisive measure. Pie informed
the civil authorities of New Jersey, that, unless the
army were relieved voluntarily, they must either dis
band or cater for themselves. He mentioned the
kinds and quantities of provisions that he should
expect from the several counties of the State, and the
days on which they should be delivered. These
demands were cheerfully and punctually complied
with. Viewed in connection with these facts, the
following letter from Ellsworth to Governor Trumbull
will attract the reader's attention : '"¦ —
' Gordon, vol. iii., p. 42. ' The deficiency proceeded,' says the
historian, 'from the absolute emptiness of the American magazines in
every place, and the total want of money or credit to replenish
them.' ^ Dated at Philadelphia, January ]4th, 1780.

SERVICE IN CONGRESS. 75
Sir: — Congress have no late intelligence from
Europe, nor do they yet learn the destination of the
troops lately embarked from New York. Four Ameri
can colonels, Morgan, Ely, &c., are out from New York,
on short parole, with propositions drawn up by them
and General Phillips, of the Convention troops, for a
general exchange of prisoners, which bids fair to take
place on the plan now proposed. It is referred by
Congress to General Washington, with power to take
measures thereon at his discretion.
' Much credit is due and given to Connecticut, for the
supply of Beef said to be coming on from thence to the
army, whose distress has been great, and yet remains
critical, for want of provisions. Eight dollars have
been given in its vicinity, by the soldiers, for a quart
of meal, and a half a dollar for one ear of corn. Flour
and grain are procured sufficient, it is said, for some
months, and now forwarding as fast as may be ; and
every attention will in future be paid to furnish money
for the Beef Department. The failure of that source,
the press, ^ gives us, as was expectable, a violent shock,
but, it is hoped, will be a salutary one. The system
of taxation, urged by necessity, is now fast establishing
itself All the States in the Union, so far as I can be
informed, are now buying and collecting, pursuant to
the regulations of Congress; though in some of them,
their Assemblies have not been together to consider
of the quotas last required. Maryland Assembly has,
indeed, been together, and adjourned without making
any provision therefor, owing to their not being able
to obtain a vote in the Senate for the sale of British
and Tory property. But, as they have called on their
' Referring to the stop put to the issuing of bills of credit, in ac
cordance to the Resolutions of Congress. See vol. i., p. 256.

76 LIFE OF OLIVER ELLSWORTH.
people, at large, to show their sense on that question,
and are soon to meet again, there is no doubt of that
obstacle being removed, and that Maryland will fully
and cheerfully furnish her quota. Greater unanimity
has at no time, perhaps, prevailed in Congress than at
present, or ever been more necessary.'
Pressed by the necessities of their situation. Congress,
like an embarrassed debtor, resorted to expedients which
proved wholly inadequate to the relief of the public dis
tresses. That currency, which for five years had been
the chief reliance for carrying on the war, was now
nearly worthless, and, judged by its standard, supplies
of every description were selling at the most exorbitant
rates. Congress now conceived the project of a new
limitation of prices ; a project which, hitherto and now,
proved ineffectual for its objects, was the source of
general dissatisfaction, and calculated to weaken the
patriotic zeal of the mass of the people. To adjust the
details of the plan, a convention of commissioners from
all the States was summoned to meet at Philadelphia.'
Ellsworth was a member, and the following letter to
Governor Trumbull relates, in part, to its proceed
ings : ^ —
' Sir : — Since 'the letter Mr. Sherman and myself
did ourselves the honor of addressing your Excellency
' A convention of the five Eastern States had been held at Hart
ford, Ct., in the previous October, and proposed a regulation of
prices on the basis of twenty for one. They also proposed a con
vention at Philadelphia, at the commencement of the year, in order
that the plan might be adopted by all the States. Congress approved
this proposal ; but, meanwhile, urged the States to adopt the regu
lation at once, without waiting for a convention. Hildreth, vol. iii.,
p. 298.
" Dated Jan. 80, 1780.

SERVICE INCONGRESS. 77
by the last post, a commissioner has arrived from Mas
sachusetts to the convention for a limitation of prices,
which had adjourned sine'die. Also a commission from
Rhode Island, to their delegate in Congress, to the
same purpose. Upon which, the Assembly of Penn
sylvania, to whom their commissioner had made a
report, have reappointed others to meet again, and a
meeting thereupon has been made of commissioners
from all the other States who attended before, except
New Jersey, with the addition of Massachusetts and
Rhode Island, at which also delegates from New York
attended, though not specially authorized, and gave
assurance that their State would abide the measures
that might be adopted. The convention having again
formed, now stands adjourned to Wednesday next, for
New Jersey commissioners, who have been requested
to come in. The result of which meeting will, per
haps, be a further adjournment to a distant day, to
give Virginia, who has not yet done it, opportunity to
appoint and send commissioners. It does not, indeed,
appear what more can well be done at this time, as
some of the commissioners present are not authorized
to do anything, unless the convention shall be attended
from all the States first proposed.
' In return for Lord Stirling's expedition to Staten
Island, a part of the enemy, consisting of one hundred
horse, and four hundred foot, last week surprised the
outguards at Elizabethtown and Newark, and made
four officers and about sixty men prisoners, and burned
some public buildings at both places.
' The supplies and prospects of the army are now
comfortable. The General was reduced to the neces
sity of demanding from the several counties in New
Jersey specific supplies ; with which they complied,
even beyond the requisitions, with much spirit. Mary-

78 LIFE OF OLIVER ELLSWORTH.
land is said to have fully complied with the requisition
of Congress to that State, for fifteen hundred barrels
of flour. Delaware has also exerted herself much in
the same way. The Assembly of the State are now
together, and seem disposed to furnish fifty thousand
barrels of flour, requested of them, as also to go into
such further specific supplies as may be necessary.
'South Carolina, justly apprehensive of her danger,
is arming three regiments of Blacks. It is highly
probable, unless the embarkation from New York
should have blown to the West Indies, or suffered
much in the storm, that we shall hear of an attack on
Charleston. Though I trust there will be a defence
sufficient, at least, to render it a serious one.' The
town, situated on a neck less than one mile across,
and not commanded by heights, is defensible, and well
fortified on the land-side. The entrance of the harbor,
being very narrow, is secured by a number of frigates,-
which are the largest that pass over the bar without
taking out their guns.^ Continental troops and militia
are now marching Southward, but may not arrive in
' See vol. i., pp. 567-569.
'^ This was a great mistake. The American ships were incapable
to defend the bar; and it was discovered that the enemy, with the
tide and an easterly wind, could enter the harbor under full sail,
and pass the Continental frigates at their station in Five-Fathom-
Hole, or at any other station they might assume. The consequence
was, that Commodore Whipple abandoned the defence of the bar,
and retreated, first to Fort Moultrie, and then to Charleston. The
impracticability of defending the bar ought to have been ascertained
before the arrival of the British fleet, and in time to save the
American ships. When it was ascertained, Charleston should have
been abandoned, and the army preserved. The urgent wishes, how
ever, of the inhabitants, and the civil authorities, together with the
expectation of reinforcements, induced General Lincoln to hazard a
defence.

SERVICE IN CONGRESS. 79
season for the enemy's first attempts.' That policy
which has long since directed the enemy to carry
their operations and efforts Southward, seems now to
be attended to, and there is much reason to expect
that the active part of the next campaign will be in
that quarter.
' I take the liberty to mention to your Excellency,
that the situation of my affairs renders it necessary
for me to return home by the beginning of March, and
to express my wishes that some of the gentlemen, on
the new election, may find it convenient to take their
seats in Congress by that time.
' I am, sir,' &c.
The military operations at the South, whither active
hostilities had been transferred, were now attracting
all eyes, and were a subject of very general interest and
speculation. On the 8th of February Ellsworth thus
writes Governor Trumbull :^ —
' No intelligence or communication has been had
from Europe since I had the honor of addressing your
Excellency last. The following is the substance of
what, material, has since that time been received
from the southward.
'Governor Watson of Georgia writes, the 15th of
December, that their Assembly were then sitting at
Augusta, — had appointed delegates to Congress, were
arranging their force, securing their frontiers, and pro
viding to co-operate in the expulsion of the enemy.

' The siege began on the first of April. On the 10th, Lincoln
was reinforced by seven hundred Continental troops, under General
Woodford ; but this addition to his force was well-nigh neutralized
by about the same number of North Carolina militia, whose term of
enlistment had expired, quitting the lines and returning home.
'' Febmary 8th, 1780.

80 LIFE OF OLIVER ELLSWORTH.
General Lincoln also writes from Charleston, the 19th
and 22d of the same month, that the enemy remained
quiet ; that a ship with military stores from Philadel
phia had very seasonably arrived ; that the four Con
tinental frigates ordered there from the eastward had
also arrived, and brought in with them a British pri
vateer of sixteen guns, and were in his possession, in
addition to the French there before, — sufficient to
secure their bar from insults, and keep open the com
munication for supplies; that the Spaniards had been
up the Mississippi, and taken possession of the British
settlements, and made nine hundred prisoners;' and
that a considerable naval force, with four thousand
troops on board, had sailed from the Havannah the
beginning of December for Pensacola or Augustine, or
both, which, however, the British army appeared to
disbelieve, and had sent no reinforcement to either of
these posts, and were in expectation of the arrival of
troops from New York. There is every reason to
believe. Sir, that Spain will make a serious diversion
in the Fioridas, to which, perhaps, we can have no
objection, provided she does not extend her views on
the Mississippi beyond the latitude of 31°, nor to an
exclusive navigation of that river.
'The Convention of this place have concluded to
adjourn to the first Tuesday of April, and to give
notice thereof to Virginia, that she may then send
commissioners, if she thinks proper, or otherwise let
her determination be known.
' I have the honor,' &c.

' The English force on the Mississippi, consisting of British and
German, under the command of Lieutenant-Colonel Dickson, did not
amount to' 500 men. They were captured after a siege of nine
days.

SERVICE IN CONGRESS. 81
The rapid depreciation of the paper-money, which
soon reached forty for one, put an end to any hope of
relief by regulation of prices. The emission of two
hundred millions by Congress, the base emissions of
the enemy, together with the emissions of the several
States, had so multiplied the currency that it had become
a drug in the market. Congress now began to perceive
that, after the amount of their bills had gone beyond
the purposes of a circulating medium, all additions to
the quantity diminished the value, and this in a very
rapid and irregular manner. Hence they determined
to destroy all the paper-bills they had emitted, and
substitute ten millions of new money, which was to
be issued as the old bills were brought in. The latter
were to be called in by taxes, in the course of a year,
and for every twenty dollars of the old, one dollar of
the new money was to be issued. This was' to be
redeemable, in specie, within six years, and in the
meantime bear interest at the rate of five per cent,
per annum. The new bills were to be issued on
funds of the several States to be established for the
purpose. This scheme was adopted on the 18th of
March, 1780, and on the 20th Ellsworth and Sherman
thus wrote Governor Trumbull in explanation of
it:* —
' Sir : — The President will transmit to your Excel
lency the resolutions of Congress for sinking the Con
tinental bills of credit, and issuing new bills on the
credit of the several States, which we hope will be
' We may as well state in the outset that this new scheme proved
ineffectual ; that the new bills depreciated in the ratio of four to one,
and Congress stopped their emission. Before the close of the follow
ing year they were compelled to rely on solid coin.
Vol. IL — 6

82 LIFE OF OLIVER ELLSWORTH.
approved by your Excellency and the honorable
General Assembly. It was judged impracticable to
carry on the war with the present currency, and no
other plan has been proposed that appeared so likely
to relieve us from the embarrassments of a fluctuating
currency, as that which has been adopted by Congress.
The depreciation here has been at the rate of sixty
for one, and in the Southern States from forty to fifty.
Neither the scarcity, nor collection of taxes, has had
any effect to appreciate or fix its value. 'Tis appre
hended that the new bills will be effectually secured
against depreciation from the smallness of the quan
tity to be in circulation, the funds provided for their
redemption, the shortness of the period, and the pay
ment of the annual interest. The preparing them
under the direction of the Board of Treasury, and the
insurance of payment by the United States in case
any State shall by the events of the war be rendered
incapable of redeeming them, will give them a cur
rency throughout the United States, and be a security
against counterfeits. The emission of bills will not
only introduce a staple medium of trade, but will
increase the revenue the amount of five millions of
dollars equal to specie. The six-tenths of the bills to
be emitted to enable the States to purchase the specific
supplies called for by the resolution of the 25th of
February last, and the remaining four-tenths will sup
ply the Continental treasury for paying the army, &c.,
while the States are collecting the old bills for taxes.
And although it is recommended to collect in the old
Continental bills by monthly assessments, it may be
expedient for the States to allow new bills to be
exchanged for old, that the old may be drawn out of
circulation as soon as possible, to prevent further
counterfeits ; and, if there should be scarcity of money.

SERVICE IN CONGRESS. 83
people might be allowed to pay their taxes in provi
sions, delivered at the magazines at the prices fixed by
Congress. The new bills will be prepared and for
warded to the States as soon as possible.
'We hear that the Honorable Assembly have or
dered a new emission of bills. We beg leave to sub
mit to your Excellency, whether it will not be expe
dient to stop the issue of them, and adopt the plan
recommended by Congress. We should be sorry to
have that fail of the good effects expected from it by
any act or omission on the part of the States. The
same proportions are kept up in the present requisi
tion as in the resolution of the 7th of October last,
wherein Connecticut is rated much too high, but hope
that wont prevent her compliance, at least to the
amount of her quota. Perhaps her quota in the
present circumstances would be more than one-eleventh
part of the whole. Repeated assurances have been
given by Congress that those States which do more than
their proportion shall be equitably compensated.
'There is a Report before Congress for fixing the
rate in specie at which the Loan-Office Certificates
will be paid.
' It is reported that a new regulation of the Quarter-
Master's and other staff departments will soon be
established on the most economical plan, whereby
much expense will be saved. They will be accom
modated to the late regulation of making purchases
by the States. The prices of the specific articles to
be furnished by the States were estimated at about
fifty per cent, above the prices of 1774. They include
all expenses of purchasing and delivering them into
the magazines. The motives for adopting that
measure were, the rendering the supplies more cer
tain and equable among the States, ;-g,nd to prevent

84 LIFE OF OLIVER ELLSWORTH.
fraud and abuses. And the aid of the States in pro-
curing the supplies was to be absolutely necessary.
'By the letter from General Lincoln of the 22d
ultimo, we are informed that part of the British forces
that left New York landed at St. Johns and St. James
islands, near Charleston — the numbers not ascer
tained, but he thinks there is a good prospect of
making a successful opposition to them. Mr. Laurens
expected to sail for Europe the 26th of February.
'We are, with the greatest respect,' &c.
Three days after the foregoing letter was written,
namely, on the 23d of March, Ellsworth again wrote
Trumbull, as follows ; —
' Sir ; — Permit me, as a private citizen, to express
my wishes that the late resolutions of Congress on the
subject of finance may meet your Excellency's appro
bation and support. Your Excellency must have long
seen, with alarming apprehensions, the crisis to which
a continued depreciation of the paper-currency would
one day reduce our affairs. It is now. Sir, just at
hand. Without more stability in the medium, and
far more ample supplies in the Treasury than for
months past, it will be impossible for our military
operations to proceed, and the army must disband.
The present moment is indeed critical, and if let
slip the confusion and distress will be infinite. This,
Sir, is precisely the point of time for the several
legislatures to act decidedly, and in a manner that
the world will forever call wise. It is now in their
power, by a single operation, to give a sure establish
ment for public credit, to realise the public debt at
its just value, and without adding to the burthens
of the people to supply the Treasury. To furnish

SERVICE IN CONGRESS. 85
one common ground to unite their exertions upon for
the accomplishment of these great purposes, your
Excellency will perceive to be the spirit and design
of the resolutions referred to. They speak a language
too plain to need any comment. I will only add con
cerning them, that they have been the product of
much labor and discussion, and though some States
may have reason for thinking they are not the best
possible, yet they are the best Congress could agree
upon. And should they be rejected, I confess I do
not well see on what ground the common exertions
of the several States are to be united and continued
hereafter. Your Excellency will forgive me the very
great freedom of this letter, and permit me the honor
of subscribing myself, with the greatest respect,' &c.
A joint letter from Sherman and Ellsworth to
Trumbull, of the same date as the foregoing, but
apparently written after the arrival of the mail which
brought a communication from his Excellency, con
tained several particulars that may interest the
reader : —
' Sir : — We are honored with your Excellency's
dispatch, of the 10th instant, by Brown, and shall pay
due attention to the matters and instructions therein
communicated. In particular, with regard to debts
due in Connecticut for beef purchased under the late
Commissary-General Wadsworth, we shall again urge
in Congress, as we repeatedly have done, the necessity
of furnishing money to discharge them. But, Sir,
there have been many and urgent calls for money,
with which it has been impossible for Congress, with
a nearly exhausted treasury, to comply. And the
same difficulty will remain so long as the different

86 LIFE OF OLIVER ELLSWORTH.
States are dilatory in collecting their quotas of money,
or,' when collected, apply it to other purposes than the
payment of Connecticut warrants.
' The reduction of the battalions in the Continental
army is a. matter now before Congress, but is attended
with difficulties. Though economy pleads strongly in
favor of the measure, yet it is doubtful whether there
will be sufficient time to adjust and settle the new
arrangement of the army before they may be called to
¦take the field; and, as every new arrangment is also
found to be a new source of discontent, it is the
opinion of some that the reduction should be post
poned until there should be fewer causes of discontent
in the army than exist at present. It has also been
observed, that should the battalions not be reduced at
this juncture, yet considerable saving ¦ may. be made
by the several States by forbearing to fill up vacancies
in their respective lines, which are already numerous,
should aiid may become more so. Our endeavors,
however, shall not be wanting to carry our instruc
tions on this head into effect.
' It is with pleasure we observe, from the acts trans
mitted to us, that, on the great and embarrassed
subject of the public finances, the leading sentiments
of the Assembly of Connecticut are much the same as
in full discussion have been assented to in Congress,
and we entertain the more confidence from the con
sideration that the measures which Congress, after so
much deliberation, have recommended, will meet that
concurrence and support from all the legislatures of
these United States, as is essential to attaining the
ends therein proposed. . . .
'By a delegate from South Carolina, just arrived,
we learn that Charleston was safe on the first instant;
that the enemy, who had occupied the adjacent islands,

SERVICE IN CONGRESS. 87
had. appeared for some days motionless ; that the gar
rison were in. good spirits; that the North Carolina
brigade of troops had arrived, and that the Virginia
line were met on their march, though at the unex
pected distance of four hundred miles.
.'We have. the honor,' &c.
On the 9th of May, Ellsworth wrote Governor
Trumbull as follows. His description of the embar
rassed condition of England will be likely to arrest
the reader's attelition : —
' Sir : — .Your Excellency will probably before the
reqeipt of this have been informed of the death of the
Hon. Don Juan Demarlles,' the Spanish gentleman of
distinction, who resided at this place. He died, after
a short illness, the 28th of April, at Morristown, to
which place he had accompanied the Minister of
France, to pay their respects to the General and
army. His remains were there interred, with the
honors of war, and his funereal rites have been also
here celebrated, this day, in the French chapel, with
very great respect, and a lasting requiem sung to his
soul. This gentleman, during his residence, appeared
duly attentive to the political interests and views of
this country, as well as his own, and waited wath
patience to see the ties between the two countries
indissolubly formed by a ratification of the treaties of
amity and commerce, which he expected would take
place on the arrival of our Minister at the Court of
Spain. 'Much anxiety prevails here to know the fate of
Charleston, from which there are no accounts, to be
' Quere Mirales ?

88 LIFE OF OLIVER ELLSWORTH.
depended on, later than the 9th of April; nor does it
appear from the papers published in New York on
the 3d of this month, that any accounts have been
received there later than ours. In addition to the
other troops that had been detached from the main
army and sent to General Lincoln, the Delaware regi
ment and the Maryland line went on a few days ago,
and will arrive, it is hoped, in season to support the
country, should the enemy be so fortunate as to gain
a temporary advantage.
'There are very circumstantial accounts from New
York, transmitted to General Washington, that Paul
Jones is on the coast with a small squadron of five
ships, and had lately chased some vessels into the
Hook, and that a seventy-four-gun ship and some
frigates were preparing in New York to go in quest of
him. This may be true. It is unknown to Congress
where he is.
' Several vessels have arrived, in this river, from
St. Eustatia as late as the 23d of April, but bring no
material intelligence in addition to what was here
before, except that the formidable fleets in the West
Indies were out of port, and that a very busy and
important campaign was expected in that quarter.
' No official information has been received very
lately from Europe ; but from the current of publicar
tions on that side of the water, and especially the
English papers, it does not appear that any power has
yet been found sufficiently uninformed to join Great
Britain in the wicked and romantic attempts of
reducing to obedience what she yet styles her rebel
lious colonies. And, as she cannot obtain assistance,
she seems willing to have it believed that she stands
in need of none, and accordingly goes on with a show
and pretensions of being sufficient for all things of

SERVICE INCONGRESS. 89
herself — much, perhaps, as a merchant sometimes on
the eve of bankruptcy makes an uncommon parade
of wealth and business, in order to keep up the delu
sion until chance may have had time to achieve some
thing in his favor. The comparison, however, fails in
this respect, that it is no secret to the world that the
circumstances of Great Britain are bad, and that her/
wisest men are filled with consternation. She isl
ready to be crushed with the weight of her own debt,
which is accumulating upon her by the whole expense
of the war, and for which she is already mortgaged to
pay forever an annual interest of seven millions ster
ling. Her revenues being fully charged with the
interest, it is impossible for her ever to reduce the
principal but by a sponge or revolution, and as impos
sible for her to go on much further in borrowing.
She is also embarrassed with the claims of oppressed
Ireland, which may perhaps advance upon her, and
she is less able to contest them. . . . Add to which,
county conventions, in spite of the ministry, are now
forming in various parts of England, under the first
characters of the nation, for reducing within due
bounds the influence of the crown and the public
expenditures ; or, which is the same thing, oversetting
the present venal and Utopian system of administra
tion. From these marks of the weakness and dis
solution she bears within herself, it is reasonable to
expect that Great Britain will ere long cease from
troubling us ; and, unless she can speedily regain the
sovereignty of the seas, she may be reduced, from her
insular situation, to hold her own existence at the
mercy of her enemies. The use good men in America
will derive from these considerations will be of encour
agement to persevere in the present contest, and con
tinue working with the Lord until, by his good pleasure,

90 LIFE OF OLIVER ELLSWORTH.
the. great business of our political salvation shall be
fully accomplished.
' It must, I knoW,. be supporting to your Excellency
to observe that the State over which you have the
honor to preside are sufficiently impressed with these
sentiments already, and do not need additional argu
ments laid before them to comply with their duty and
their interest. Their sense and determination ex
pressed by the General Assembly in their late sessions
at Hartford, are a proof, and at the same time exhibit
to the world a conviction, of the never-failing resources
a wise and virtuous republic has within itself. I
thought it my duty to read in Congress the accounts
I had received from Connecticut, and was kept in
countenance by their just approbation. And it is
devoutly to be wished that the well-timed and ani
mating example of so respectable a State may have
its due influence with the rest. A number of their
assemblies, as New York, NeW Jersey, Pennsylvania,
Maryland, and Virginia, are, it is said, now convened,
or convening, and will be informed, through the
channel of the Philadelphia papers, if not otherwise,
what Connecticut has done.
' I have the honor,' &c.
There is something in the pecuniary vitality of
England that baffles the speculations of the economist,
and renders all conjectures as to the extent of her
resources apparently futile. If Ellsworth at this time
had been told that, after the exertions and expendi
tures of the American war, England, instead of sink
ing into weakness and infirmity, would set out afresh
in the career of prosperity, would enlarge and con
solidate her empire in the East, open new sources of
commerce, increase her military strength, and for

SERVICE IN CONGRESS. 91
nearly a quarter of a century wage war with the most
formidable power of modern times, — that, in addition
to the support of her own fleets and arrnies, she would
subsidize her allies — that she would do all this with
apparent ease, — her credit never doubted, her re
sources never failing — and come out of the contest,
at last, victorious over all her foes, and then surpass
all other nations in the career of commerce and
industrial enterprise, — his imagination would have
rejected, as wild and chimerical, what , living men
have beheld.
'By the inclosed paper, of this day,' thus Ellsworth
wrote Trumbull on the 6th of June, ' your Excellency
will see the Spaniards are in possession of Mobile.
There are no late official accounts from South Carolina.
But, from a variety of circumstances, there is much
reason to apprehend that Charleston is in the hands
of the enemy, and that the garrison capitulated about
the 12th of May. The war will probably be very
serious with us this campaign, and it is to be wished
all may expect and be prepared for it.
' Some of the new bills for Connecticut will, we
hope, be forwarded the beginning of next week.
What the Eastern States have done on the resolutions
of the 18th of March, your Excellency is fully in
formed. New York has adopted the measure with
unanimity and spirit, and pledged their forfeited
estates as a fund for their bills. The doings of this
State your Excellency will see in the inclosed paper.
The Assembly of Delaware are convening again, and
it is hoped will have wisdom and firmness to do right.
Maryland meets again the 7th of this month. Mr.
Jenefer, a delegate from that State, says they will
undoubtedly adopt the measure and execute it, as not
only the people, but a decided majority both in the

92 LIFE OF OLIVER ELLSWORTH.
Senate and Assembly, approve it. A question arose,
when their Assembly were last together, between them
and the Senate, whether the new bills should be a
tendry. On this they grew warm, and adjourned.
They have probably by this time cooled, and dis
covered that they were disputing about a circumstance
not very essential. Virginia Assembly are together,
and there is every reason to believe that they will
adopt the measure pretty unanimously.
' There is nothing very late from Europe, nor any
other particulars yet received of the engagement in
the West Indies than what is taken from the English
accounts. ' We hear nothing yet of the arrival of the French
fleet, but shall begin to look out for them in a week
or ten days.
' I have the honor,' &c.
As late as the 8th of June definite intelligence of
the fall of Charleston had not reached Congress. On
that day Ellsworth wrote Trumbull, that ' the various
accounts we have from the southward still leave it
a matter of doubt whether Charleston is taken or not.
Though it is now generally believed to have been safe
on the 12th of May, and by many as late as" the 18th.
A body of the enemy marched into New Jersey the
7th, as far as Springfield. Some skirmishing has
ensued. Whether the object is foraging, or attempts
ing the camp at Morristown, or to make a show of
their force, is uncertain.
'Letters from Martinique, as late as the 13th of
May, mention no further particulars of the engage
ment of the 17th of April, than that the Englisli fleet,
in a shattered condition, put into the St. Lawrence;
and that the French fleet, with the troops on board,

SERVICE IN CONGRESS. 93
continued out, and, it was hoped, would be able to
effect a descent upon some of the English islands.
'A very large quantity of military stores and pro
visions are said to have arrived in the West Indies
from France. We do not yet hear of the arrival of
the fleet expected on the coast. More than forty sail
of merchantmen have arrived in the Chesapeake and
Delaware in the course of ten days. Prices and
exchange are falling. There has been no depreciation
of the currency here for about three months.
'Your Excellency will doubtless receive from the
President a resolution for advancing a sum of the
moneys of the United States, when such there shall
be not otherwise appropriated, to the French Commis
sary, Mens. De Corny, to be replaced in specie on the
arrival of their fleet. It is, indeed, to be wished that
the United States had money, at this time in Connec
ticut and other States, that could be advanced for
such exchange, as evident and essential benefits might
be derived therefrom. But, at present, it cannot be
supposed that they have much money anywhere. Of
this the Minister (of France) was frankly told before
the resolution passed, that he might not be thereby
disappointed ; and it was doubtful whether there
would soon be any considerable sums in the Treasury,
or Loan Office of Connecticut, for which Congress
would have right to draw. It is earnestly his wish
to do all in his power for establishing the credit of the
paper-currency ; and I will take the liberty to sug
gest to your Excellency, as I did to the Minister, that
should the United States have money on hand, which
they could so exchange, it might be of public utility
could such exchanges be made with individual States
or persons. He has received of this State £17,000 of
their new bills, similar to those lately struck off for

94 LIFE OF OLIVER ELLSWORTH.
Connecticut, to replace the same in specie when the
fleet arrives. It would be well if the specie which the
French may bring into this country could, with their
approbation and convenience, be placed in the public
treasury, and their purchases made with the same
currency as ours.
' Two or three hundred thousand dollars of the new
bills for Connecticut will be sent forward on Monday
next. If the holders of the old bills should be de
sirous or willing to exchange them for the new at .
their relative value, this might perhaps be effected,
under proper restrictions, through the hands of a
public agent, or agents, who should receive and carry
the old bills into the Loan Office, to be destroyed, and
obtain credit therefor to the State, as part of its
quota to be brought in, and who could receive the
six-tenths in behalf of the State, or, at the rate of one
for forty, to the proprietors of the bills received, in
retaining one-tenth for the State. This thought I
have taken the liberty to suggest to the consideration
of your Excellency, conceiving it to be immaterial to
the United States what method, consistent with good
faith, any State shall take to expedite the gathering
and bringing its quota to be destroyed. To what
lengths it may be expedient for the State to lay open
its funds, so that persons possessed of money in other
States should be disposed to give the preference to
Connecticut funds, might come in and take the benefit
of them to the eventual exclusion of some of its own
citizens, as the case may be, your Excellency will be
most competent to determine.
' I have the honor,' &c.
Charleston had now been in the hands of the enemy
a full month, yet, on the 13th of June, no official

SERVICE INCONGRESS. 95
information of its fall had reached Philadelphia — so
difficult was the transmission of intelligence. On that
day, Ellsworth thus wrote Trumbull : —
' Sir : — Though we are yet without official informa
tion respecting Charleston, there scarce remains a
doubt of its being taken, and that the garrison sur
rendered, on terms, on the 12th of May. The capitu
lation, published in New York, is in this city, but I
have not seen it, to note the particulars it contains.
General Gates is ordered to the southward, to take
command. The enemy remains in force at Elizabeth-
town Point. The object is yet unascertained.
' I have forwarded, by the bearer, 120,000 dollars
of the new bills for Connecticut, and have , more on
hand, to be forwarded in a few days.
' The State of Now Jersey has also adopted the
measure recommended on the 18th of March.
' I beg leave to express my sincere condolence with
your Excellency for the loss of Mrs. Trumbull.'
Ten days later, viz., on the 23d of June, Ellsworth
again wrote the Governor : —

¦*o"-

' I enclose, for your Excellency's perusal, the papers
last published here. The enemj' have gained some
advantages, at the southward, since the surrender of
Charleston ; but it is to be hoped, from the exertions
now making in North Carolina and Virginia, that they
will not be able to proceed much farther. The enemy
in New Jersey remained, on the 20th of this month,
inactive at Elizabethtown Point. It is certain a fleet
has returned to New York from Charleston, and, ac
cording to the best information yet obtained, has
brought General Clinton and a considerable part of

96 LIFE OF OLIVER ELLSWORTH.
his troops. It is said that Admiral Arbuthnot has
also returned. General Lincoln arrived this day at
Congress, and has requested an enquiry into his con
duct in his loss of Charleston. Mr. Laurens having
been prevented from going to Holland, Mr. John
Adams, or, if inconvenient for him, Mr. Dana, is
authorized to transact [business] until Mr. Laurens,
or some other appointed in his room, shall arrive.
' Your Excellency, I presume, has too perfect a
knowdedge of the state of the army, and too frequent
representations of public exigencies from Congress,
their Committee at camp, and the General, to leave it
in my power to add anything on those subjects. Mr.
Huntington is nearly through the smallpox, and I
hope will soon leave me at liberty to return home.
' I have the honor,' &c.
On the first of August he thus wrote Governor
Trumbull : —
'Sir: — My health being reduced so low as not to
admit of my constant attendance in Congress, and the
situation of my family and affairs making it necessary
for me soon to return home, I propose. Sir, to return
the beginning of autumn, of which I hope your
Excellency will not disapprove. I have written to
Mr. Law, who I supposed would come to the next
Congress, acquainting him with my circumstances,
and requesting him to come by the first of September,
or sooner, if he could. And I take the liberty to
request your Excellency, in case Mr. Law should by
any means fail of coming, that some other gentleman
in the delegation, as shall be most convenient for
them, may be called on.
' Nothing very important, of late, has passed in
Congress. There is, at present, a representation from

SERVICE IN CONGRESS. 97
all the States,, except North Carolina. The Court of
France has undertaken to guarantee a loan, for these
States, of ten miUions of livres.' Present assurances
have been received of the friendly dispositions of the
King of Prussia. There is no account yet of the pro
posed mediation having made any further progress
than to be offered. Probably Great Britain will not
be hasty in accepting it, if she believes as delusively
as her minister writes, that America is on the point
of submission. There is, perhaps, too great an oppo
sition of interests in this mediation, for either of the
parties at war to be willing to risk their claims with it
further than circumstances may require.
' We have nothing later from the southward than
is contained in the enclosed papers.
' I have the honor,' &c.
Soon after the date of the foregoing letter, Ellsworth
returned to Connecticut, and did not resume his seat
in Congress until June, 1781.
' $1,851,851.

Vol. II.

98 LiFE OF OLIVER ELLSWORTH.

CHAPTER V.
1781-1783.
SERVICE IN CONGRESS CONTINUED.
It would be of little satisfaction to the reader to
enumerate the various committees upon which Ells
worth served during the time he remained in Con
gress, in the summer of 1781; neither would the
detail illustrate his character, nor the history of that
period. The war was approaching its close, but the
decisive blow had not yet been struck. The army
was unpaid ; the paper-money had fallen nearly out
of circulation, and supplies could only be obtained for
specie. The finances, however, were now under very
efficient control. Congress had abandoned the old
system of boards and committees ; and the Depart
ments of Foreign Affairs, War, Marine, and Finance,
were each placed under a single head.' Robert Morris
had charge of the Finance Department, and how
important were his services, how ardent and success
ful his efforts in the most critical moments, histor3^
has delighted to record.
' Robert R. Livingston was placed at the head of the Department
for Foreign Affairs, and Lincoln at the head of the War Department.
Instead of the Committee for hearing Appeals in cases of prize, a
Court of Appeals, consisting of three judges, was instituted. The
business of the Marine Committee was placed in the hands of the
Superintendent of Finance.

SERVICE IN CONGRESS. 99
When EUiSworth returned to Congress in December,
1782, great changas had taken place. Cornwallis
had surrendered, possession of the Southern States
had been recovered, and the resolution of the House
of Commons against any further prosecution of the
war on the American continent, evinced very clearly
that the country was soon to enjoy the blessings of
peace. This prospect, after the distresses of a long and
exhausting war, was hailed with unfeigned satisfac
tion. But the difficulties which surrounded Congress
were still great and pressing. The States, relieved of
impending danger, — their soil no longer occupied by
hostile forces — sunk into utter inertness. Instead
of the fervid patriotism that animated the people at
the beginning of the war, party-spirit or selfish views
now seemed to be the prevailing motives of their
conduct. The languor of the several States, — their
inability or unwillingness to carry out the reeom-
mendations, or comply with the measures, of Con
gress — occasioned the greatest solicitude, and were a
source of well-founded alarm. The public creditors
had become impatient, and the discontent of the army
threatened the most serious consequences. It was
absolutely necessary that measures should be adopted
to restore the public credit; but how this should be
done, how a permanent revenue should be provided,
how raised and collected, were questions of great
difficulty, and occasioned long and able debates. On
one hand, those who favored a strong central govern
ment were anxious that the revenue should be col
lected under the authority of Congress ; and, on the
other, the advocates of State authority would leave
the public engagements to be provided for by the
several States.

100 LIFE or OLIVER ELLSWORTH.
Among those who would still trust to the vigor and
public spirit of the States, — unreliable as that vigor
and public spirit had hitherto proved — was Ells
worth: and he would do this from expediency and
virtual necessity. His argument, certainly, is forcible.
On one side 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. He observed,
that it was a question of great importance how far the
Federal Government could 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 everything to
the unanimous punctuality of thirteen different coun
cils. 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 approprieited
to the discharge of the common debt.'
He substantially concurred in Rutledge's scheme of
an impost, as described in the life of that gentleman.^
He suggested, however, several modifications. He
concurred in the expediency of new-modelling the
plan of the impost by defining the period of its con
tinuance.; by leaving to the States the nomination,
and to Congress the appointment, of collectors, or vice
versa, and by a mor'e 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
' Madison Papers, vol. i., p. 291. ' Vol. i., p. 593.

SERVICE IN CONGRESS. 101
disputes into which a failure might 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 cer
tificates should be receivable. State-funds, for the
domestic debts, would be proper for subsequent con
sideration.' The scheme of revenue finally adopted by Congress,
viz., a tax on land and duties on imports,^ received
his support. With Hamilton and Madison, he was
appointed a committee to prepare an address to the
States in explanation and recommendation of it. It
was written by Mr. Madison, and sets forth, with elo
quence and ability, the necessity of providing for the
Federal debt.'
Having thus briefly explained Ellsworth's views
upon the interesting question of revenue, we shall
now recur to his correspondence, and relate the his
tory of contemporary affairs in his own language.
On the 23d of April, 1783, he thus writes Oliver
Wolcott, sr. : ¦• —
' Dear Sir : — I hope you reached home safe, and
found your family well, and yourself also in better
health than is possible to be enjoyed in the fog of
this city. Your recess from business, after long con
finement, must, I think, afford you some pleasure, and
to see the fruits of your labor — peace and independ
ence — much more.
' Madison Papers, vol. i., pp. 809, 310.
2 Vide vol. i., pp. 594, 595.
' This address is printed in the Appendix to the first volume of
the Madison Papers.
¦* Ellsworth returned to Connecticut in February, but again took
his seat in Congress in April.

102 LIFE or OLIVER ELLSWORTH.
' Congress, since you left it, have ratified the provi
sional treaty, and ordered the prisoners to be released,
and also that the public horses and other now useless
property be sold; and has passed the report on revenue
with alteration of the duty on salt to five per cent.,
and the duty on all wines, except Madeira, which
stands at twelve-ninetieths to six-ninetieths of a dollar.
We have nothing more yet of the treaty. Late pri
vate letters from Europe mention that preliminaries
were not signed by the Dutch, but that at last they
had received such offers from the British as the French
Court advised them to accept, and that there was no
doubt but they would ; also, that they had appointed
a Mr. Van Birkel their Ambassador to these States.
A letter has been received from Mr. Dana, at Peters-
burgh, of the 15th of January. He had not then
assumed a public character, nor made any advances
towards a treaty of commerce, nor indeed could make
any to purpose till he should first pave the way,
according to the niggardly custom of that Court, with
about £10,000 sterling in presents to her ministers.
He also thought it very probable that a war would
take place between Russia and the Porte, on account
of the Khan of Crimea, who had been deposed by the
Tartars of that Independency.
' Sir Guy Carleton has written to Congress to ap
point a person to attend at New York, to see the
seventh article of the treaty, relating to American
property, duly observed, as he expects soon to begin
an embarkation. Most of the Tories are gone from
there to Nova Scotia, cursing their King all the
way. . . .
' Colonel Dyer, I suppose, is well. With Mrs.
Trumbull and his new span, and Doctor Holton as an

SERVICE IN CONGRESS. 103
aid, he set off last Saturday for an airing to Wilming
ton, and is not yet returned.'
On the 6th of May he again wrote Wolcott : —
' Dear Sir : — I am happy to find, by your letter of
the 25th of April, that you were safe at home and in
perfect good humor, and that you propose, by and bye,
writing a treatise to keep everybody else so. I hope.
Sir, you will send me one of the first impressions,
which I shall certainly stand in need of, if I do not
get away from here sooner than present prospects
indicate. But it seems. Sir, that you are not quite
out of the noise of politics, though you are happily
removed from this seat of them. That horrid clamor,
of which you speak, about commutation, — a mere
change of a name, indeed — though it excites neither
the idea of guilt nor fear in your mind, does very illy
become a people of sense, especially in the very mo
ment of their salvation, when every heart and voice
ought to be joined in praise.' But so it is. Sir. The
Princes of the Power of the Air can raise storms any
time when they have occasion for them, having ele
ments to work upon, and which, like the roaring sea,
casteth up mire and dirt, and are easily set in
motion. ' We are not yet favored with the definitive treaty.
The completion of it is said to have been delayed for
the approbation of the Emperor of Germany and the
Empress of Russia; as a compliment to them, I sup-
' Ellsworth here refers to the act of Congress commuting the half-
pay for life (of officers) into five years' full-pay, in a gross amount,
certificates to be issued for it, bearing interest at six per cent. This
measure was very generally condemned in New England, where the
feeling was strong against any extra pay whatever.

104 LIFE OF OLIVER ELLSWORTH.
pose, for having so far interested themselves as to
offer their mediation to bring it about.
' GeneralWashington and Sir Guy Carleton have an
appointment to meet this day at Tappan, to confer
about the evacuation of posts and other matters in
the seventh article of the treaty. Nothing yet ap
pears to induce a suspicion that the treaty will fail of
being carried into effect, on both sides, as fast as the
nature of the case will admit. Certainly, we cannot
wish to see it violated and annulled ; nor has Great
Britain so much reason to be dissatisfied, under all
circumstances, as North, Fox, and their partisans pre
tend, — for their object probably is, to hunt down the
present minister, and to transfer the popular odium
from the criminal to the executioner. If Great
Britain, induced thereto by the folly of a former
administration, must make us independent of herself,
it is wise in her to do it with a grace, and in a
manner that shall also keep us independent of France.
This principle was, no doubt, well explained and
enforced by Messrs. Adams and Jay. But it would
have been weakness in a British minister not to have
adopted it, and in as large an extent as in the present
treaty seems to have been done, even as to the
Loyalists, who are said to have been sacrificed for
nothing.' I believe the true interest of the British
' If sacrificed in the treaty, the Loyalists, in large numbers, were
provided for by Parliamentary allowance. Their application for in
demnity was favorably, received : out of five thousand and seventy
claims that were presented, only nine hundred and fifty-four were
abandoned or rejected; among the remaining number about fifteen
millions of dollars were distributed. In addition to this sum, pro
vision was made for those who had lost lucrative offices. Besides,
the confiscating laws were generally repealed, and many of them
returned to this country and got possession of their property.

EERVICE IN CONGRESS. 105
nation is better secured by peopling a colony with
them, than it could have been by re-instating them
with us. Their number is said to be neaf thirty
thousand. 'A number of officers from Sir Guy Carleton are
now going on to take charge of the British prisoners
at Lancaster and elsewhere, and conduct them by
land to New York. Sir Guy expects soon to be super
seded or relieved by General Gray. Three months' pay
is like to be made to the army when they shall be
disbanded : one-third in cash, and the rest in Mr.
Morris's notes. He will continue in office until the
engagements he shall enter into for this purpose, and
those that he has already entered into, which are not
yet performed, shall be fulfilled.
' Congress are busy in the peace arrangements, and
I now think will not have a recess the ensuing
summer. ' Should this find you at Hartford, as T hope it will,
I must beg your influence with Mr. Huntington to
come forward to Congress as soon as he can, as Colonel
Dyer does not propose to stay much longer, and there
is danger of Congress being without a representation
of nine States, which would greatly embarrass the
business they have now generally to transact. I hope
Mr. Strong, or some other gentleman, will also soon
be ready to relieve me. I do not, and dare not, think
of staying through the summer.
'I was favored with your letter from Danbury,
which, as Brown was here, I omitted to answer till he
should return, which did not happen till I received
your other letter of the 25th. I shall be very happy.
Sir, to receive your letters as long as I stay here, and
to merit the continuance of your confidence as long as

106 LIFE OF OLIVER ELLSWORTH.
I live. With compliments to Mrs. Wolcott and your
daughters, I am,' &c.
Most of the distinguished men of the Revolution,
after the contest was ended, retained but little of
hostile feeling towards Great Britain. With the mass
of the people, however, resentment was too deeply
rooted to be easily eradicated. At the South, too,
where the war had entailed more personal suffering
and loss than elsewhere, a spirit of animosity had
been aroused, which was shared by all classes. Rut
ledge, we have seen, manifested to the last an intense
and unconquerable aversion to Great Britain.' But
at the North the leading men had far more sympathy
with England than with France. Suspicion of the
designs of the French Court, which Jay and Adams
early imbibed and communicated to Congress — the
course pursued by Vergennes with respect to the
fisheries and the public lands — had induced a distrust
of France, which subsequent events were not calcu
lated to efface. Besides, they regarded the prostration
of Great Britain as likely to be injurious to their own
country and subversive of the best interests of Europe.
Among those who shared this opinion were Jay and
Ellsworth. We have seen that the former, early in
the war, while he would risk all for independence,
nevertheless, wished well to Old England.^ The fol
lowing letter from Ellsworth to Governor Trumbull,
dated May 13th, 1783, among other particulars, will
give a hint as to the sentiments he entertained to
wards the mother-country : —
' Sir : — Little has occurred here worth your Excel
lency's notice, since Colonel Dyer addressed you by
¦ Vol. i., pp. 629, 630. ^ Ibid., p. 193.

SERVICE IN CONGRESS. 107
messenger Brown. An interview has been had be
tween General Washington and Sir Guy Carleton, at
Orangetown, for sundry purposes relating to the exe
cution of the seventh article of the provisional treaty.
Every assurance is given by the latter that New York,
with Penobscot, shall be evacuated as soon as shippiiig
necessary for that purpose can be procured, which he
has sent for. Commissioners on the part of the United
States are appointed to superintend, with others on
the part of the British, the embarkation, to prevent
any property being carried away, which by the treaty
was stipulated to. be left. It is not probable our army
will disband till the embarkation takes place. The
army are like to be furnished with three months' pay
at the time of disbanding. Part of it must be paper
anticipation. Mr. Morris will continue in office until
the engagements necessary to be entered into for that
purpose shall be discharged. The troops of the
Southern army, composing the Pennsylvania, Mary
land, and Virginia lines, are sent for, to be brought
into their respective States, in order to their being
discharged. ' Congress are now busied in reducing, as fast as
may be, the public expenditures, and settling the
necessary peace arrangements. A plan of revenue for
funding the public debt, which has taken up much
time in Congress, will be immediately forwarded for
the consideration of the State, accompanied with the
documents necessary to give information relating to
that important subject. As might naturally be ex
pected at the close of so long a war, we find a con
siderable debt on our hands, which, all will agree, it
much concerns the national character and prosperity
to provide for, however various may be the opinions
as to the mode of doing it.

108 LIFE OF OLIVER ELLSWORTH.
' It is, I think, Sir, also of much importance at this
time, that the accounts of the several States with the
United States should be liquidated and brought to an
equitable adjustment. Unless this is done, it will be
impossible [to have] mutual confidence and a good
understanding among them, or to obviate the objec
tions which almost every one in its turn makes against
complying with the requisitions necessary for the com
mon interest and safety. Commissioners for liquida
ting these accounts are now gone, and going, into the
States. The necessary instructions for the one nomi
nated for Connecticut, I understand by Mr. Morris,
are sent forward, and I hope, if approved by the State, .
he will be able immediately to proceed to business.
' We are not yet, Sir, favored with the Definitive
Treaty of Peace, which is now daily expected. The
completion of it is supposed to be somewhat delayed
to consult the approbation of the Emperor of Germany
and the Empress of Russia, who particularly interested
themselves in the restoration of a general peace.
'By the enclosed paper your Excellency will per
ceive that another change^ has taken place in the
British ministry. Not seeming in a humor to be
satisfied, that fickle nation one day sacrifices a Premier
for continuing the war, and the next day another for.
putting an end to it. The truth, perhaps, is, that
Great Britain, not having been able to accomplish her
purposes either by fighting or treating, finds it more
convenient to charge the failure to a deficiency in her
servants, than to acknowledge what the world per
ceives to be the case, a deficiency in her resources and
power. It is no secret that her debt is so increased as
to require, together with her peace establishment, a
million and a half sterling annually more than her
revenue amounts to. This circumstance alone made

SERVICE IN CONGRESS. 109
it necessary for her, at all events, to purchase peace,
and will probably be sufficient security for her good
behavior for a long time yet to come. Neither the
safety of this country, or [nor] the balance of power
of Europe, requires that Great Britain should be at all
more reduced than she in fact is ; and it is by avoid
ing that distraction of councils and corruption of
manners that have brought her down, that America
can hope to rise or long enjoy the blessings of a revo
lution, which, under the auspices of Heaven, she has
gloriously accomplished.'
The following letter to Governor Trumbull, dated
June 4th, 1783, so far as it relates to the coalition
between Lord North and Fox, and to the question
then pending in Congress as to the propriety of having
resident ministers at the various foreign courts, is
quite curious : —
' Sir : — Colonel Dyer has lately left Congress, and
will fully inform you of the state of affairs to that time,
and leave very little for me to communicate to your
Excellency. A packet just arrived at New York from
Falmouth, it is represented, brings information that
the Definitive Treaty was signed, and that the British
were to leave this coast, at farthest, by the first of
August. The packet also brings a list of the new
British ministry, established the 2d of April, which I
take the liberty to enclose. From the strange coali
tion of which it is formed, there is little reason to
doubt but that another change of a partial nature will
follow, as soon as the present convulsive state of that
nation shall have subsided. Lord North, who is the
fixed favorite of his sovereign, and a man of the most
system, business, and address, will easily find means

110 LIFE OF OLIVER ELLSWORTH.
to lay aside Mr. Fox and his coadjutors when he can
well do without them, as he has already done with
regard to one set of opponents, whom he let come for
ward to perish in the odium of exciting measures
which he had rendered necessary.
'A letter from Mr. Dumas to the Secretary of
Foreign Affairs advises, that Mr. Van Birkle, Ambas
sador from their High Mightinesses the States General
to these United States, was to sail for America the
first of this month.
'A question, which has been more than once agi
tated in Congress, on the expediency of an interchange
of ministers with foreign courts, except on special
occasions, is yet undecided, and probably will receive
no direct decision. While, on the one hand, respect
ability abroad, facility of acquiring and extending
useful information, and the long-established custom of
European nations, except the uncivilized Turk and
mountain-barricaded Swiss, plead strongly in the affir
mative ; considerations of economy and simplicity of
manners, so necessary to be observed in republics, and
factious intrigues, so necessary for them to avoid, have
much weight in the opposite scale.
' Congress have appointed Oliver Pollock, late Agent
of the United States at New Orleans, their Agent to
reside at the Havannah. It is to be hoped, we shall
not ultimately fail of the valuable trade of that island,
though its ports are at present shut against us, owing,
it is said, in some measure to abuses committed there
under the American flag by foreigners who wished to
render it obnoxious.
'We hear from the Assembly of Virginia, that the
House of Delegates, notwithstanding they so unani
mously and recently voted a repeal of their act grant
ing to the United States the impost first recommended

SERVICE IN CONGRESS. Ill
by Congress, had given liberty for a bill to be brought
in for complying with the requisition of the impost,
as it now stands, and that there was a great probability
the act would pass. This is the only Assembly from
which we have yet heard upon that subject, and from
which, next to that of Rhode Island, the greatest
opposition was apprehended.
'A very liberal offer is made by Maryland, to
induce Congress to fix its residence at Annapolis.
One less so had before been made by the State of New
York, of the town of Kingston. Which, or whether
either of them, will be accepted is uncertain ; though
it is generally agreed that Congress should remove to
a place of less expense, less avocation, and less influ
ence, than are to be expected in a commercial and
opulent city. . . ,
' I have the honor to be,' &c.
The following letter, written a few days after the
foregoing, namely, on the 18th of June, 1783, relates
chiefly to the progress of negotiations abroad : —
' Sir : — . . . Nothing official has been received
here from Europe since I had the honor of addressing
your Excellency by messenger Brown, except a letter
from Mr. Laurens, of the 5th of April, at London,
mentioning the appointment of David Hartley, Esq.,
in the room of Mr. Oswald, to finish the American
negotiations, and that, from conversing with several
of the new ministry, particularly the Duke of Portland
and Mr. Fox, he was satisfied of their disposition, that
they should proceed with liberality and dispatch.
Another letter, of the 23d of April, from Doctor Frank
lin's secretary, mentioning the arrival of Mr. Hartley
in France, and that the Doctor was then gone, in com-

112 LIFE OF OLIVER ELLSWORTH.
pany with him, from Passy to Versailles ; and a letter
from Mr. Dana, at Petersburgh, of the last of February,
mentioning that he expected it would be two months,
according to the dilatory course of such business at
that court, before the commercial treaty with them,
which he was upon, would be finished.
' The furloughed part of the army are on their way
home. Some have arrived here from the southward.
They receive three months' pay, but all in Mr. Mor
ris's notes, which run six months.
'I do not learn. Sir, that any of the legislatures this
way, or to the southward, have yet passed upon the
plan of revenue proposed by Congress, except those
of New Jersey and Maryland, neither of which has as
yet adopted it fully: the first having granted the
impost as requested, but the other funds only for
one year; the latter having granted the impost, and
postponed the rest to another session.
' Mr. Huntington is not yet arrived. I hope he is
near at hand, and that he has at least one colleague
with him.
' I have the honor,' &c.
It is mentioned in the preceding letter, that some
of the furloughed troops from the southward had
arrived at Philadelphia, and that provision had been
made to give them three months' pay. Some delay
in preparing Mr. Morris's notes, in which the payment
was to be made, led to a mutiny among these and
other Pennsylvania troops, which interrupted the pro
ceedings of Congress, and induced an adjournment to
Princeton, whence Ellsworth, on the 10th of July,
thus wrote Governor Trumbull : —

SERVICE IN CONGRESS. 113
' Sir : — I should have acknowledged the tenor of
your Excellency's letter, of the 23d of June, by Jesse
Brown, of whom I received it on his return, but he
made no stay here. He will have informed your Ex
cellency of the adjournment of Congress to this place.
They were prevented going on with business at Phila
delphia by a mutiny, in the Pennsylvania line, of
about five hundred men, who had formed there, under
a board of sergeants, for a redress of grievances, and
taken the command of the city and magazine, and
had proceeded so far as, with fixed bayonets, to sur
round the State House in which Congress and the
Council of the State were sitting, — threatening de
struction, if their demands were not complied with in
twenty minutes. Some officers of a higher rank, as
was then supposed, and since appears, were the insti
gators of the plot — two of whom have fled. Con
gress, by a committee,' whose report is herewith in
closed, called on President Dickinson and his Council
to turn out their militia, and suppress the mutiny ;
but they had not spirit or power enough to do so, or
did not think it necessary. After waiting in this situa
tion for some days, and appearances of menace and
further violence still continuing, Congress judged it
expedient to adjourn to this place, which they did on
the 27th of June — expecting, at the same time, that
their removal out of the reach of the mutineers, with
its being known that a detachment of Eastern troops
was ordered from the main army, might, by convincing
them they were to expect coercion, instead of compli
ance, disconnect and disperse them. The expectation
was in some measure answered. The detachment
from the army is, notwithstanding, gone forward to
' This committee consisted of Hamilton, Ellsworth, and Peters.
Vol. IL — 8

114 LIFE OF OLIVER ELLSWORTH.
disarm such of the mutineers as may not have dis
persed, and bring to trial such of the principal actors
as can be apprehended, and also to prevent further
disorder upon the arrival of the Pennsylvania hne
from the South.
' How long Congress will remain here is uncertain.
They will hardly return to Philadelphia, without some
assurance of protection, or even then with the inten
tion to stay longer than till accommodations shall be
elsewhere prepared for a fixed residence. But, Sir, it
will soon be of very little consequence where Congress
go, if they are not made respectable, as well as respon
sible, which can never be done without giving them a
power to perform engagements, as well as to make
them. It was, indeed, intended to have given them
this power, in the Confederation, by declaring their
contracts and requisitions for the common defence
sacredly binding on the States; but in practice it
amounts to nothing. Most of the States recognise
these contracts and comply with the requisitions so
far only as suits their particular opinion and conve
nience. And they are the more disposed, at present,
to go on in this way, from the irregularities it has
already introduced, and a mistaken idea that the
danger is over — not duly reflecting on the calamities
of a disunion and anarchy, or their rapid approach to
such a state. There must, Sir, be a revenue somehow
established, that can be relied on, and applied for
national purposes, as the exigencies arise, independent
of the will or views of a single State, or it will be
impossible to support national faith or national exist
ence. The powers of Congress must be adequate to
the purposes of their constitution. It is possible,
there may be abuses and misapplication, still it is
better to hazard something, than to hazard all.

SERVICE IN CONGRESS. 115
' I am glad to be informed. Sir, that the two Messrs.
Huntington will be here soon. Business has been
much delayed for the want of a sufficient repre
sentation. 'We have, nothing official concerning the Definitive
Treaty later than by a letter from Doctor Franklin,
about the 20th of April. It had been delayed by the
tardiness of the Dutch, but more for the want of a
British ininistry; but was then progressing. Mr.
Hartley, who has succeeded Mr. Oswald, was very
acceptable, and, as the Doctor adds, an old acquaint
ance of his, and a lover of peace.
'Accounts from New York say that an embarkation
of the German troops is taking place, and that a
treaty is to be expected very soon. The commercial
treaty with Sweden is arrived. Denmark also desires
one. The Journals requested by your Excellency
shall be sent.
' I have the honor,' &c.
In August, or the latter part of July, Ellsworth
returned home, and did not again take his seat in the
Continental Congress. Although re-elected by the
Legislature of Connecticut, he declined the service.
He also declined the appointment, tendered him by
Congress in the following year, of Commissioner of the
Treasury. He had now served his native State with ability in
the councils of the Confederacy, and we shall see, in
the following chapter, that that ability was equally
employed, though in a different capacity, at home.

116 LIFE OF OLIVER ELLSWORTH.

CHAPTER VI.
1780-1784.
A MEMBER OF THE GOVERNOR'S COUNCIL.
While a Delegate to Congress, Ellsworth, in the
year 1780, was elected a Member of the Governor's
Council, or the Upper House, as it was styled. This
post he held, by successive re-elections, until 1784.
The Council, in the Connecticut system, was a co
ordinate branch of the Legislature, and also constituted
the Supreme Court of Errors, with legal and equitable
jurisdiction.' Ellsworth, when present, took an active
part, it is said, in its deliberations, and had unrivalled
influence over his colleagues. He was conscientious
and faithful in the discharge of his duties. His habits
of thought were slow and laborious, and his mind did
not reach its conclusions without long and anxious re
flection; but whatever labor was necessary, to fix and
confirm his opinion, he did not fail to bestow.
' Whenever any important case was under considera
tion in the Council or Court of Errors,' says Mr. Wood,
' Mr. Ellsworth, in the recess, if one occurred, retired
to his lodgings, and continued travelling the floor, un
conscious of any thing except the operations of his
' It consisted of the Lieutenant-Governor and twelve Assistants.

A MEMBER OF THE COUNCIL. 117
mind, until he went through his course of thought
and research. During this time his lips were in mo
tion, and an indistinct utterance kept up, intermingled
with pinches of snuff as often as once a minute, till he
arrived at his conclusions. His mind, then, seemed
to find instant relief, and he gave himself up to amuse
ment and cheerful conversation. In these moments
of relaxation he frequently delighted himself with the
sports and prattle of children. When the Board were
¦at Hartford, a little lad, by the name of John Bull,
who lived in the neighborhood of Mr. Ellsworth's
lodgings, found out that he was a very amusing play
mate at a certain hour of the day, and therefore
regularly made his appearance at the door, to have a
romping with his jocose companion.''
This simplicity of tastes, this love of children — in
themselves a more valuable testimony to the goodness
and kindliness of his nature than alb labored eulogies
— characterized Ellsworth through life. Neither the
weight of public cares, nor the strife of politics, cor
rupted or hardened the native purity of his heart.
'The love of children,' says one of his biographers,
' had always been one of his prominent traits of
character. From the chicanery and selfishness of
mankind he turned, with renewed pleasure, to their
simplicity. It was remarked of him, in early life,
that, when deeply engaged in those absorbing studies
which afterwards won for him fortune and renown,
he daily spent some time in caressing his neighbor's
children. He even seemed disappointed when any
circumstance prevented this accustomed intercourse.
Though there were long periods in which he was com
pelled to seclude himself from the pleasures of the
' MS. Memoir by Mr. Joseph Wood.

118 LIFE OF OLIVER ELLSWORTH.
domestic circle, yet he would sometimes permit his
own little ones to enter his study when occupied in
the severest toils of thought, and draw pictures for
their amusement. "I like to indulge them in this
way," he observed, " and when it is necessary to deny
them, I send them to their mother." As they ad
vanced in age, their improvement and the formation
of their habits were felt by him in their full import-,
ance. The incalculable worth of time, the duty of
industry, the folly of extravagance, the necessity of
rectitude and piety, were impressed both by precept
and example.''
So great was the deference paid to Ellsworth by the
members of the Connecticut Council, that it frequently
happened, after the majority had expressed their
opinion, a question, a suggestion from him, induced a
reconsideration and reversal of decision. And, in
general, his direct, simple, and lucid statement of the
points in issue determined the judgment of the Court.
We have, however, no specimens of this portion of his
judicial career, and must rely on contemporary testi
mony as to the merit and importance of his services.
He continued a Member of the Council, as we have
already mentioned, until 1784, when he was appointed
a Judge of the Superior Court of Connecticut. In
this latter position we shall view him in the follow
ing chapter.

National Portrait Gallery, vol. iv. Art. ' Ellsworth.'

JUDGE OF SUPERIOR COURT. 119

CHAPTER VII.
1784-1789.
A JUDGE OF THE SUPERIOR COURT OF CONNECTICUT.
The career of Ellsworth as a Judge of the Superior
Court of Connecticut does not present many points of
especial interest. The decisions of the Court, while he
was a member of it, are chiefly collected in Kirby's
Reports. Few of his opinions, however, are reported
in extenso, and the cases themselves do not possess
much of novelty or interest. When he came to the
Bench, the law in Connecticut was in an uncertain
and unsettled state. A good deal of embarrassment
had arisen from the attempt to reject such part of the
common law as was supposed to be inapplicable to the
situation of a community distinguished for 'the equal
distribution of property, simplicity of manners, and
agricultural habits and employments.' But in deter
mining what was applicable and what inapplicable,
great uncertainty and contradiction naturally arose in
the decisions of the Courts. ' For the principles of their
decisions were soon forgot, or misunderstood, or erro
neously reported from memory. Hence arose a confu
sion in the determinations of our Courts, the rules of
property became uncertain, and litigation proportion-
ably increased.'' ' Kirby's Reports, Preface.

120 LIFE OF OLIVER ELLSWORTH.
The publication of Kirby's Reports was a very im
portant step towards establishing a uniform and per
manent system of law in Connecticut. Though the
cases at the present day may not be regarded as
throwing any very important light on the principles
of jurisprudence, they must, historically, be viewed
with interest. With these few preliminary observa
tions, we shall now lay before the reader several of
Ellsworth's opinions, which will give a favorable im
pression of his general ability, even if they do not par
ticularly display his character as a jurist.
In Hobby v. Finch, &c.,' Ellsworth dissented from
the judgment of the Court, and held that an advertise
ment that lands are to be sold at public auction, with
the terms of sale, &c., is not a sufficient memorandum
in writing within the statute for the prevention of
frauds and perjuries, and, consequently, that the
vendor could not be held to a performance of his
agreement. He thus stated the grounds of his opinion.
' First. Because the declaration is ill. It doth not
appear that the plaintiff paid or offered to pay, or
secure the sum he bid for the land, nor that he bid
any sum that would have justified the administrators
in passing a deed. Nor is there any averment of the
value of the land, or any rule of damages given.
Secondly. The advertisement is no evidence or memo
randum of agreement on which the action is grounded.
The agreement was made at the time the land was
bid off, and was made and expressed on the one part
by the hid made for the land, and on the other part
by striking it off. Here the minds of the parties met,
and the substance of the agreement, as thus expressed,
was, that the plaintiff should have the land for the
' Kirby's Reports, pp. 14, 16.

JUDGE OF SUPERIOR COURT. 121
sum he had then bid for it, and that a deed should be
executed accordingly. The advertisement doth not
express this agreement, nor either part of it ; nor was
any reference had to the advertisement in forming this
agreement, farther than as to the mode of payment.
That this "sale was at public auction makes no dif
ference. It is as requisite, by the statute, that public
sales of land should be guarded as private ones, and
it is as easy to be done. A memorandum of the sale
might be taken in writing from the vendor, and would
hardly be refused, if required at the time of the sale
or agreement. I think the statute extends to this
case, and that it has not been complied with.'
In Hart v. Smith,' Ellsworth again dissented from
the judgment of the Court, which was, that assumpsit
would not lie for money paid by mistake in the settle-'
ment of an account; though, if the mistake was appa
rent on the face of the account, a special action on the
case, pointing out such mistake, might be sustained.
'It is an established principle of law,' said Ells-
w^orth in his dissenting opinion, 'founded in the most
apparent justice, that an action will lie for money paid
bj- mistake ; and it makes no difference whether the
mistake happens in the settlement of an account, or
of any other matter. It is sufficient, to maintain the
action, that there has been a settlement, and a mistake
therein, whereby the defendant has obtained money of
the plaintiff, which in conscience he ought not to
retain. The difficulty lies in showing with clearness
and certainty that the mistake has happened, which
in all cases cannot be done ; as where a settlement is
made in gross, without computation or regard had to
particulars ; so where a settlement is made on compu-
' Kirby's Reports, p. 127.

122 LIFE OF OLIVER ELLSWORTH.
tation, but the evidence of the computation is not pre
served, and only a receipt is given, to show that a set
tlement has been made. But other cases there are, in
which the mistakes are clear and certain ; as where
they have happened by a miscast, a mistaken or double
entry, and the account or statement is preserved for
inspection, as in the present case ; so where the mis
take has happened by the misconception of a fact,
which afterwards comes to light; as when a loss has
been allowed on a policy of insurance, and the vessel
afterwards safely arrives. Whenever the mistake is
apparent, or, from the nature and circumstances of it,
clearly demonstrable, a remedy may and ought to be
admitted ; nor will the admission of it invalidate the
settlement of the parties, which may still be left to
operate, so far forth as the same was understandingly
made. Ratifying the errors or mistakes of a settle
ment does not destroy it, but only makes it what the
parties designed it should be ; and the Court, in the
trial of every such case, will confine the plaintiff to lay
his finger at once upon the mistake, and not suffer him
unnecessarily to ramble over the settlement.' Having
thus established a right of recovery, he proceeds to
inquire whether such recovery may be had in an
action of indebitatus assumpsit. ' This is a kind of
action,' said he, ' well known in our practice, as well
as in the common law of England; and from the
equity of the principles on which it proceeds, and the
extensiveness of the remedy it gives, is highly favored.
It lies generally when one has secured money belong
ing to another, without any valuable consideration on
the receiver's part ; for the law construes this to be
money had and received to the use of the owner only;
it is in the nature of a bill in equity, and is applicable
to almost every case where the defendant has received

JUDGE OF SUPERIOR COURT. 123
money which, ex equo et bono, he ought not to retain ;
and particularly where he has obtained it by imposi
tion or mistake, as in the present case. ... As the
trial is on equitable principles, the defendant may,
under the general issue of non assumpsit, disprove the
facts set up by the plaintiff, or set up other and inde
pendent facts, to rebut the equity of the plaintiff's
demand. The generahty both of the charge and de
fence are supposed to be adapted to the nature and
design of the action.'
In Adams v. Kellogg,' the Court held that a feme-
covert cannot devise real estate to her husband. The
opinion of Ellsworth upon this question is very full
and instructive. Starting with the proposition that
the light to direct the succession of estates by will is
not a natural, but a municipal right, a mere creature
of law, he thus proceeds: 'Admitting, however, that
a right of devising estate was a natural right, it would
not follow that &. feme-covert has it, though there be no
statute to take it away. Many natural rights are con
trolled by long use and custom, which may be evincive
of common consent, and acquire, to every purpose, the
force of law. Others are controlled by the reason of
the case, arising out of some special relation or condi
tion. We have no statute to divest a feme^covert of
her personal estate ; and yet nobody doubts but, by
the act or condition of coverture, it becomes the hus
band's; nor have we any that she shall not contract
and bind her person and estate, as a feme-sole may ;
yet she cannot do it. It cannot, then, be inferred
that a fem.e-covert has power to devise an estate, from
the score of natural right. As to her supposed com
mon law right to devise her estate, there has not been
' Kirby's Reports, pp. 195, 438.

124 LIFE OF OLIVER ELLSWORTH.
a custom or any adjudications to found it upon, eithet
in this country or that from which we emigrated.
' The right of devising is of a much later date than
that of heiring estates, both being political inventions,
but not equally the offspring of necessity. The latter
we trace to Abraham's time; the former only to
Solon's, who introduced it into the Athenian code, to
supply the want of heirs where there was no issue.
From thence, with some enlargement, it was copied
into the Roman twelve tables; and has at length, by
very slow degrees, and with some alterations, been
adopted by the greatest part of Europe. Denmark,
Sweden, and Poland, however, had not the use of
wills, either of real or personal estate, at the beginning
of the present century, and I am not certain that they
have yet.
' With regard to the latitude in which the Romans
admitted the use of wills, who extended it to feme-
coverts, a diversity of circumstances ought to be noted.
Marriage, by their law, formed a much slighter union
of persons and property than is the case with us. A
wife might contract and bind her person and estate,
and maintain actions in her own name ; nor was the
husband holden for her debts, contracted before or
after marriage, nor civiliter for her trespasses. She
might retain and manage her personal as well as other
estate, except what she saw fit to advance to her hus
band, to entitle her to a jointure ; and this, if his cir
cumstances declined, she might recover back again,
and have an action against him for it; and nothing
more than consent of parties was necessary to dissolve
the marriage. Consonant enough to this state of things
was the wife's power to make a will. A son could not
do it, while his father lived, because he was under the
power of the father, and considered as one with him.

JUDGE OF SUPERIOR COURT. 125
From this heathenish source sprung the idea of ^feme-
coverts power to make a will, and has been absurdly
adopted by some Christian nations, whom clerical in
fluence has been sufficient to shackle with the civil
law' Having shown that, neither by natural or common
or statute law, has n. feme-covert the right to devise her
estate, he thus concludes :
' With regard to the policy of extending such a
power to feme-coverts, it may be remarked, that there
is not the same reason for it as there was for the
statute empowering a husband to sell his wife's lands,
with her consent. From a sale of them .she might
have comfort and necessary support, but not from a
devise. Besides, the freedom of her consent in that
case is to be evinced, as fully as it may, by examina
tion before a magistrate; which circumstance also, as
well as that of recording, gives immediate notoriety to
the transaction, that all concerned may scrutinize it
while it can be done to advantage. Nor do the general
reasons urged for the institution of wills seem to ex
tend to the case of 2i feme-covert. That of their use in
aiding family government does not, because the gov
ernment is not placed in her hands. Nor does that of
their utility in stimulating to industry and economy;
for her exertion adds nothing to the stock she is to dis
pose of The crumbling down of overgrown estates
need not be mentioned here. The possession of this
power must be as inconvenient for feme-coverts as it is
unnecessary. It must subject them to endless tensing
and family discord, as well as frequently their heirs,
and sometimes their children, to the loss of property,
which the law has been studious to preserve for them.
Add to which, exposed as they are to coercions imper
ceptible to others, and dangerous for them to disclose;

126 LIFE OF OLIVER ELLSWORTH.
placed in the power of a husband, whose solicitations
they cannot resist, and whose commands, in all things
lawful, it is their duty to obey. Their wills, taken in
a corner, and concealed from the world till they have
left it, can afford but very uncertain evidence of the
real wishes of their hearts. Political considerations,
therefore, so far as they can be of weight, serve to con
firm the opinion, that a feme-covert has not power to
dispose of her estate by will.'
Having thus given the general reader an opportu
nity to observe in what manner Ellsworth acquits
himself in the discussion of legal questions, we do
not propose to trace further his services while on the
Bench of the Superior Court of Connecticut. Indeed,
as, in most of the cases, the individual opinions of the
Judges are not reported, such a labor would fail to
throw any additional light upon this portion of his
career. Upon one interesting subject of inquiry we
have been unable to obtain any precise information,
and that is, respecting the opinions he entertained of
the barbarous criminal code at this time in force in Con
necticut. The punishments inflicted on offenders —
whipping, cropping, branding with a hot iron, exposure
with a halter round the neck, &c. — were directly cal
culated to destroy all pride of character, all desire, or
even chance of reformation. Whether Ellsworth was
in advance of his contemporaries, and in favor of
ameliorating a code thus brutal in its character, is un
known to us. Taking leave of him, for the present,
in his judicial character, we shall now view him on
the broader theatre of public affairs.

THE FEDERAL CONVENTION. 127

CHAPTER VIII.
1787.
THE FEDERAL CONVENTION.
The absence of any general authority to provide
means for the payment of the public debt, and regu
late commerce, together with the distracted counsels
of the several States, threatened to involve the affairs
of the United States in anarchy and confusion. 'Our
situation,' thus wrote Madison, ' is becoming every
day more and more critical. No money comes into
the Federal Treasury, no respect is paid to the Federal
authority, and people of reflection unanimously agree
that the existing Confederacy is tottering to its foun
dation.'' In this crisis of the body-politic, the Federal
Convention assembled at Philadelphia, in May, 1787.'
It was composed of the most distinguished abilities
and character that the country could boast. Over its
deliberations presided Washington; the genial wisdom
of Franklin illustrated its debates ; the trained mind,
extensive information, and reflective habits of Madi
son ; the fertile resources, the ready and trenchant
talents of Gouverneur Morris; the liberal views and
sound sense of Charles Cotesworth Pinckney ; the in-
' Madison to Randolph, February 25th, 1787. Madison Papers,
p. 619.
» Vol. I., pp. 373-876, 601, 602.

128 LIFE OF OLIVER ELLSWORTH.
flexible integrity and unbending republicanism of
Colonel Mason; the rare genius of Hamilton; the
penetrating mind and persuasive eloquence of Rufus
King — were all displayed on this conspicuous theatre,
and more or less determined the course and result of
the Convention. But, whatever is due to the merits
of others, 'it is owing,' says Mr. Calhoun, 'it is owing
— I speak it here, in honor of New England and the
Northern States;^it is owing mainly to the States of
Connectietttrand New Jersey that we have a Federal,
instead of a National Government; that we have the
best Government, instead of the most despotic and in
tolerable, on the earth. Who were the men of these
States to whom we are indebted for this admirable
Government ? I will name them. Their names ought
to be engraven on brass, and live forever. They were
Chief Justice Ellsworth, Roger Sherman, and Judge
Patterson of New Jersey. The other States further
south were blind ; they did not see the future. But
to the sagacity and coolness of these three men, aided
by a few others, but not so prominent, we owe the
present Constitution."
Ellsworth had long perceived the necessity of re
organizing the Federal authority so as to give it a
revenue independent of the States; but that object
attained, he would preserve the latter in their integ
rity, and give the General Government no more con
trol over them than was requisite to enforce the
powers with which it might be entrusted. In other
words, he would enlarge the authority of the Confede
ration, rather than substitute an entirely different sys
tem. As the favorite scheme of government proposed
' Calhoun's Works, vol. iv., p. 354. Remarks on Simmons's Reso
lutions.

the federal CONVENTION. 129
to the Convention departed widely from his views, it
was his endeavor, in the discussions that ensued, to
make that scheme as nearly conformable to his senti
ments as possible. He was among the most earnest,
as he certainly was among the ablest, advocates of
what was termed the States-Rights party.
His colleagues in the convention, from Connecticut,
were Roger Sherman and William Samuel Johnson.
Sherman was practical, laborious, and well-informed;
but his mind was neither richly, nor variously, en
dowed. His distinguishing qualities were good sense,
adroitness in the management of affairs, sound judg
ment, and unwearied application. His grave de
meanor, austere virtue, and practical wisdom, were all
calculated to impress the minds, and insure the confi
dence of his constituents. Ellsworth entertained for
him the profoundest respect, and endeavored, it is
said, to form his own character on Sherman's model.
' This,' remarked John Adams, ' was praise enough
for both."
Johnson was wholly unlike Sherman. He was
naturally attracted to the literce humaniores, and was
distinguished for liberal culture and graceful eloquence.
In masculinity, in talents for affairs, in logic and labor,
he was inferior to his colleagues; but, in extent and
variety of information, in scholarship, in oratory, in
all that attracts the eye and captivates the heart, he
was their superior.
Ellsworth objected to the term National Govern
ment, and proposed, instead, the Government of tJie
United States. This, he said, was the proper title. He
wished the plan of the Convention to go forth as an
amendment of the Articles of the Confederation, since,
' Portrait Gallery, vol. iv. Art. ' Ellsworth.'
Vol. II. — 9

130 LIFE OF OLIVER ELLSWORTH.
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 ratifica
tion, several succeeding conventions within the States
would be unavoidable. He did not like these conven
tions. They were better fitted to pull down than to
build up Constitutions.'
The existence and agency of the States he deemed
indispensable. Without their co-operation it would be
impossible, he said, to support a republican govera-
ment over so great an extent of country. An army
could scarcely render it practicable. The largest
States were the worst governed. Virginia is obliged
to acknowledge her incapacity to extend her govern
ment to Kentucky; Massachusetts cannot keep the
peace one hundred miles from her capital, and is now
forming an army for its support. How long Pennsyl
vania might be free from a like situation could not be
foreseen. If the principles and materials of our gov
ernment 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.^
Under a National Government, he said, he should
participate in the national security; but that was all.
What he wanted was domestic happiness. The Na
tional Government could not descend to the local
' Madison Papers, vol. ii., p. 908. The scheme introduced into
the Convention by Mr. Patterson of New Jersey, which was purely
Federal, and excluded the idea of any departure from the principle
of the Confederation, was concerted among the membera from Con
necticut, New York, New Jersey, and Delaware, with, as is supposed,
Mr. Martin of Maryland. Ibid., p. 812, note.
^ Madison Papers, vol. ii., p. 957.

THE FEDERAL CONVENTION. 131
objects on which this depended. It could only embrace
objects of a general nature. He turned his eyes, there
fore, for the preservation of his rights, to the State
Governments. From these alone he would derive the
greatest happiness he expected in this life. His hap
piness 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.'
He would not only preserve the identity of the
States, but their equality also ; and as a means to
secure this, he insisted that, in the Senate, each State
should have an equality of suffrage. When it was
decided that, in the first branch of the Legislature, the
representation of the several States should be accord
ing to population, Ellsworth remarked, that he was
not sorry at the result. He hoped it would become a
ground of compromise with regard to the second
branch. They were partly national, and partly Fede
ral, he said. 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 com
promise should take place, their meeting would not
only be in vain, but worse than in vain. To the east^
ward, he was sure Massachusetts was the only State
that would listen to a proposition for excluding the
States, as equal political societies, from an equal voice
' Madison Papers, vol. ii., p. 1014. With these views it is, per
haps, unnecessary to say that he opposed the idea of Congress having
a negative on the State laws.

132 LIFE OF OLIVER ELLSWORTH.
in both branches. The others would risk every con
sequence rather than part with so clear a right. An
attempt to deprive them of it was at once cutting the
body of America in tw^o. The large States, he con
ceived, would, notwithstanding the equality of votes,
have an influence that would maintain their supe
riority. Holland, as had been admitted, had, notwith
standing a like equaUty in the Dutch Confederacy, a
prevailing influence in the public measures. The
power of self-defence was essential to the small States.
Nature had given itto the smallest insectof the creation.
He could never admit that there was no danger of
combinations among the large States. They would,
like individuals, find out and avail themselves of the
advantage to be gained by it. It was true the danger
would be greater if they were contiguous, and had a
more immediate and common interest. A defensive
combination of the small States was rendered more
difficult by their greater number. He would mention
another consideration of great weight. The existing
Confederation was founded on the equality of the
States in the article of suffrage ; was it meant to pay
no regard to this antecedent plighted faith ? Let a
strong Executive, a Judiciary, a Legislative po\ver, be
I created; but let not too much be attempted, by which
I all may be lost. He was not in general, he said, 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 should be more
fully experienced.'
An equal vote to each State in the Senate, he main
tained, was essential to save the few from being de
stroyed by the' many. If security was all that the
' Madison Papers, vol. ii., p. 998.

THE FEDERAL CONVENTION. 133
great States wished for, the first branch secured them.
His position was not the result of partial or local
views. The State he represented belonged neither to the
class of large or small States, but held a middle rank.'
Against this notion of an equal representation in
the Senate was arrayed a very strong opposition —
an opposition which numbered in its ranks Franklin,
Madison, King, Pinckney, Wilson, and, indeed, a ma
jority of the Delegates.
Madison said, if it was conceded, the minority could
negative the will of the majority of the people ; could
extort measures, by making them a condition of their
assent to other necessary measures ; could obtrude
measures on the majority, by virtue of the peculiar
powers which would be vested in the Senate; and
that the evil would increase with every new State
that might be admitted. Besides, it would give a per
petual preponderance to the Northern against the
Southern scale. Wilson objected to equality of votes
in the Senate, because the small States might control
the Government, as they had done in the Continental
Congress. Ellsworth, in reply, asked two questions — one of
Mr. Wilson, whether he had ever seen a good measure
fail in Congress for want of a majority of States in its
favor ? — the other of Mr. Madison, whether a negative
lodged with a majority of States, even the smallest,
could be more dangerous than the qualified negative
proposed to be lodged in a single Executive Magistrate,
who must be taken from some one State ?
At first, Ellsworth was in favor of paying the mem
bers of Congress out of the treasuries of their respec
tive States. In opposition to this proposition, Hamil-

' Madison Papers, vol. ii., p. 1003.

134 LIFE OF OLIVER ELLSWORTH.
ton pressed the distinction between the State Govern
ments and the people. The former, he said, would be
the rivals of the General Government. The State
Legislatures ought not, therefore, to be the paymasters
of the latter. In reply to this, Ellsworth said, if they
were jealous of the State Governments, the latter
would be equally jealous of them. 'If, on going
home,' said he, 'I tell them we gave the General
Government such powers because we could not trust
you, will they adopt it ? And without their approba
tion it is a nullity?'' Again, 'if the Senate was meant
to strengthen the Government, it ought to have the
confidence of the States. The States will have an in
terest in keeping up a representation, and will make
such provision for supporting the members as will
ensure their attendance.'^
But his views upon this subject were successfully
answered by Madison. They would subvert, he main
tained, the end intended by allowing the Senate a
duration- of six years ; they would hold their places
during the pleasure of the State Legislatures. ' The
motion,' said he, ' would make the Senate, like Con
gress,' the mere agents and advocates of State interests
and views, instead of being the impartial umpires and
guardians of justice and the general good.'"*
It has been said of Ellsworth, that, after he had'
formed his opinion, he was very pertinacious in adher
ing to it ; but, on this occasion, he was convinced of
the impolicy of payment by the States, and gracefully
acknowledged his error. He said that, on reflection,
he had become satisfied that too much dependence on
' Madison Papers, p. 935. ' Those who pay,' said Hamilton, ' are
the masters of those who are paid.' Ibid., p. 934.
= Ibid., p. 970. ^ The Continental Congress.
¦• Madison Papers, p. 971.

THE FEDERAL CONVENTION. 135
the States would be produced by this mode of pay
ment. He moved, therefore, that the members of
Congress should be paid out of the treasury of the
United States.
He was of opinion that the number of Representa
tives should not be large, not only on the ground of
expense, but for the reason that the public business
would be more promptly and better conducted with a
small representation. He was in favor, too, of an
annual election of Representatives. ' The people were
fond of frequent elections,' he said, ' and might be
safely indulged in one branch of the Legislature.' He
opposed the proposition to make the privilege of an
elector dependent on a property qualification. ' Ought
not every man who pays a tax,' he inquired, ' to vote
for the Representative who is to levy and dispose of
his money ?' At any rate, if a pecuniary qualification
was to be insisted on, leave the several States to fix
the amount, and not attempt a provision for it in the
Constitution. He would also make members of Con
gress ineligible to public offices. ' If rewards are to
circulate only within the Legislature, merit out of it,'
he said, ' will be discouraged.'
Gouverneur Morris urged the danger of admitting
strangers into our public councils, and hence proposed
fourteen years' citizenship, as a qualification for Sena
tors. But Ellsworth was opposed to the motion, as
discouraging meritorious aliens from emigrating to
this country. Rutledge, too, proposed that a residence
of seven years in a State should be required, to entitle
one to be elected a Representative to Congress. Ells
worth, on the contrary, thought seven j'ears too long
a term. He thought one year sufficient, but seemed
to have no objection to three years.
He was opposed to conferring on Congress the

136 LIFE OF OLIVER ELLSWORTH.
L power to issue paper-money. The mischiefs of that
description of money were fresh in the public mind,
and had excited the disgust of all the respectable part
of America. ' Paper-money can in no case be neces
sary,' he said. 'Give the Government credit, and
other resources will offer. The power may do harm,
never good.'
Rutledge was in favor of the Union assuming the
debts of the States, inasmuch as they were incurred
in the common defence, and especially as taxes on im
ports, the only sure source of revenue, were to be
given to the common Government. Ellsworth thought
the assumption would naturally follow, so far as the
State debts ought in equity to be assumed.
Over the militia of the States, he would give the
General Government all necessary authority ; but was
opposed to the idea of the latter making laws for their
regulation and discipline, except when they were in
the actual service of the United States. ' The whole
authority over the militia,' he said, 'ought by no
means to be taken away from the States, whose conse
quence would pine away to nothing after such a sacri
fice of power. Pie thought the general authority could
not sufficiently pervade the Union for such a purpose,
nor could it accommodate itself to the local genius of
the people. It must be vain to ask the States to give
the militia out of their hands.' Besides, he deemed a
uniform militia law impracticable. ' Three or four
shillings,' he said, ' as a penalty will enforce obedience
better, in New England, than forty lashes in some
other places.'
On the question proportioning representation to
direct taxation, and both to the white and three-fifths
of the black inhabitants, Ellsworth voted in the affir
mative. His colleague. Doctor Johnson, was of opinion

THE FEDERAL CONVENTION. 137
that wealth and population were the true, equitable
rules of representation, but these two principles re
solved themselves into one ; population being the best
measure of wealth. He concluded, therefore, that the
number of people ought to be established as the rule,
and that all de'scrip tions, including blacks equally with
the whites, ought to fall within the computation.
Notwithstanding the provision of the Constitution
which gives the slaveholding States a representation
based, in part, on three-fifths of their black population,
excited a good deal of discussion and opposition in the
Convention, and has since been the subject of much
jealousy and unfriendly criticism, it is difficult to con
ceive any valid objection to it. Indeed, it would be
difficult to answer satisfactorily Doctor Johnson's view
of the matter, viz., that the blacks should stand on an
equality with the whites. The negroes constituted a
large portion of the population of the Southern States.
They were the laboring, producing population. Why
should other States scrutinize the character of that
population, and discriminate against it? If the rule
of representation between confederating States is
population, why should not that population be enume
rated irrespective of its condition ? Any representa
tion of the slave population, however, was warmly
opposed by many of the leading members of the Con
vention, and by none more warmly than Gouverneur
Morris. 'Upon what principle,' he demanded, 'is it
that the slaves shall be computed in the representa
tion ? Are they men ? Then make them citizens,
and let them vote. Are they property ? Why, then,
is no other property included ? The houses in this
city [Philadelphia] are worth more than all the
wretched slaves who cover the rice swamps of South
Carolina. . . . Let it not be said that direct taxation

138 LIFE OF OLIVER ELLSWORTH.
is to be proportioned to representation. It is idle to
suppose that the General Government can stretch its
hand directly into the pockets of the people, scattered
over so vast a country. They can only do it through
the medium of exports, imports, and excises. For
what, then, are all the sacrifices to be made? He
would sooner submit himself to a tax for paying for
all the negroes in the United States, than saddle pos
terity with such a Constitution.'
It was also urged against slave representation, that
it would encourage the slave trade, inasmuch as every
accession of that class of po]3ulation would proportion-
ably increase the votes of the slaveholding States in
the National Government. And to the slave trade
there was a very strong opposition. Maryland and
Virginia had already prohibited it; but if allowed by
the General Government, their action would be in vain.
Fresh supplies of wretched Africans, said Gouverneur
Morris, would increase the danger of attack, and the
difficulty of defence. The right of importing, said
Luther Martin, was unreasonable, because slaves weak
ened one part of the Union which the other parts were
bound to protect.
Ellsworth, on the other hand, would not intermeddle
with the subject. ' Let every State import what it
pleases,' he said. ' The morality or wisdom of slavery
are considerations belonging to the States themselves.
What enriches a part enriches the whole, and the
States are the best judges of their particular interest.
The old Confederation had not meddled with this
point. He did not see any greater necessity for bring
ing it within the policy of the new one.'
In reply to Colonel Mason, who said that slaves
produced the most pernicious effect on manners, that
every master of slaves is born a petty tyrant, Ellsworth

THE FEDERAL CONVENTION. 139
remarked, that, as he had never owned a slave,' he
could not judge of the effects of slavery on character.
He said, however, ' that, if it was to be considered in
a moral light, we ought to go further, and free those
already in the country. As slaves also multiply so fast
in Virginia and Maryland, that it is cheaper to raise
than import them, whilst in the sickly rice swamps
foreign supplies are necessary, if we go no further than
is urged, we shall be unjust towards South Carolina
and Georgia. L^tJiaJiffltriEttesaieddle. As population
increases, poor laborers will be so plenty as to render
slaves useless. Slavery, in time, will not be a speck
in our country. Provision is already made in Connec
ticut for abolishing it; and the abolition has already
taken place in Massachusetts. As to the danger of
insurrections from foreign influence, that will become
a motive to kind treatment of the slaves.'
General Pinckney, in order to get rid of one diffi
culty that had been started, moved to refer the subject
to the Committee, in order that slaves might be made
liable to an equal tax with other imports, which he
thought right. Gouverneur Morris wished the whole
subject to be committed, including the clauses relating
to taxes on exports, and a navigation act. These
things, he said, might form a bargain among the
Northern and Southern States. We have elsewhere
stated that a proposition had already been reported,
that no navigation act should be passed without the
assent of two-thirds of the members present in each
House — a proposition exceedingly distasteful to most
of the Northern States, and which they were desirous
to get rid of
Ellsworth, however, was for taking the plan as it
' Vol. i., p. 610.

140 LIFE OF OLIVER ELLSWORTH.
was. He would concede the right of importing slaves,
without compromise or equivalent. 'This widening
of opinions,' he said, ' had a threatening aspect. If we
do not agree on this middle and moderate ground, he
was afraid we should lose two States, with such others
as may be disposed to stand aloof — should fly into a
variety of shapes and directions, and most probably
into several Confederations, and not without blood
shed.' Accordingly, he voted against a reference of
the clause as to a navigation act.
On the question as to the mode of appointing the
Executive, three plans were proposed. First, appoint
ment by Congress, with ineligibility for a second term.
Secondly, an election by the people at large. Thirdly,
appointment by Electors chosen for that purpose by
the States.
To the first mode, it was objected, that it would be
attended with intrigues and contentions : to the second,
that while, perhaps, fittest in itself, yet the people
might be misled by designing men ; and, besides, the
right of suffrage was more diffusive in the Northern
than in the Southern States, and the latter would have
no influence in the election, on the score of the negroes:
to the third, Ellsworth gave his support. His plan
proposed the appointment by Electors, chosen by the
Legislatures of the States, according to a prescribed
ratio. To the mode of election, that is, by Electors, a
majority of States assented; but it was left to the
Legislatures of the several States to determine how the
Electors should be chosen.
Ellsworth favored six years as the term of the
Executive office. ' If the elections be too frequent,' he
said, ' the Executive will not be firm enough. There
must be duties which will make him unpopular for the

THE FEDERAL CONVENTION. 141
moment. There will be outs as well as ins. His
administration, therefore, will be attacked and misre
presented.' He would not make him ineligible. He
should be re-elected, if his conduct proved him worthy
of it. ' And he will be more likely," said he, ' to ren
der himself worthy of it, if he be rewardable with it.
The most eminent characters, also, will be more will
ing to accept the trust under this condition, than if
they foresee a necessary degradation at a fixed period.'
He approved heartily of the proposition to associate
the National Judiciary with the Executive in the
revisionary power. ' The aid of the Judges,' he said,
' will give more wisdom and firmness to the Executive.
They will possess a systematic and accurate knowledge
of the laws, which the Executive cannot be expected
always to possess. The law of nations will also fre
quently come into question. Of this the Judges alone
will have competent information.' But this expedient
was shown, as we think, to be unwise, and was judi
ciously rejected.
To the idea, however, of an Executive Council,
Ellsworth was very much wedded, and on a subsequent
day he renewed the subject. He conceived there
ought to be a Council ; and his proposition was, that
it should be composed of the President of the Senate,
the Chief Justice, and the Ministers as they might be
established for the Departments of Foreign and Do
mestic Affairs — War, Finance, and Marine — who
should advise but not conclude the President. This
proposition, however, shared the fate of the first, and
was rejected.
Ellsworth urged the appointment of the Federal
Judiciary by the Senate, rather than the President;
but, in the absence of that mode, he would give

142 LIFE OF OLIVER ELLSWORTH.
to the Senate the nomination, subject to the Presi
dent's approval. He thought the Senators, coming
from all parts of the country, would have a better
knowledge of characters than the Executive; and,
besides, the latter would be more open to caresses
and intrigues than the former. This view of the
subject was favorably received, but was not finally
adopted. We have now laid before the reader the opinions
which Ellsworth espoused in the Federal Convention.
We have seen that, in the outset, he declared himself
in favor of a ratification of their proceedings by the
Legislatures of the States, rather than by conven
tions. On that point he was very strenuous, and
made an elaborate speech in its support. He thought
more was to be expected from the Legislatures, than
from the people. To the objections of Colonel Mason,
that the Legislatures had no authority to ratify, and
if they had, their successors, having equal authority,
could rescind their acts, he replied, that a new set of
ideas seemed to have crept in since the Articles of
Confederation were established. ' Conventions of the
people were not then thought of. The Legislatures
were considered as competent. Their ratification had
been acquiesced in without complaint. To whom
have Congress applied, on subsequent occasions, for
further powers? To the Legislatures, not to the
people.' Besides, they existed as a Federal society,
united by a charter which admitted of alterations by
the Legislative authority of the States. As to the
second point, he could not admit that it was well-
founded. 'An act to which the States, by their Legis
latures, make themselves parties, becomes a compact
from which no one of the parties can recede of itself

THE FEDERAL CONVENTION. 143
The plan of the Convention, however, was referred
to conventions; and in the next chapter we shall see
the part he took in the Convention assembled to pro
nounce upon it, in Connecticut. We should here
observe, however, that, during the final proceedings
of the Federal Convention, Ellsworth was absent;
and, from that circumstance, his name was not
attached to the Constitution. But, although objecting
to some of the details of that instrument, he was,
nevertheless, prepared, as we shall presently see, to
give it his earnest and unqualified support.

144 LIFE OF OLIVER ELLSWORTH.

CHAPTER IX.
1788.
THE CONNECTICUT CONVENTION.
Ellsworth was a member of the Connecticut Con
vention, which assembled at Hartford, in January,
1788, and opened the debates on the proposed Consti
tution. He made two speeches — one in explanation
of the scheme of government recommended by the
Federal Convention ; the other on the power of Con
gress to lay taxes. These speeches — as giving the
reader an idea of his style and ability in treating
political subjects — will naturally find a place here.
It should be observed, however, that they are not alto
gether an accurate representation of his views, as was
publicly stated by him soon after their appearance.
On opening the discussion, he thus addressed the Con
vention : —
' Mr, President : — It is observable that there is no
preface to the proposed Constitution ; but it evidently
presupposes two things — one is, the necessity of a
Federal Government ; the other is, the inefficacy of
the old articles of Confederation. A Union is neces
sary for the purposes of a national defence. United,
we are strong; divided, we are weak. It is easy for
hostile nations to sweep off a number of separate
States, one after another. Witness the States in the
neighborhood of ancient Rome. They were success-

THE CONNECTICUT CONVENTION. 145
ively subdued by that ambitious city, which they
might have conquered with the utmost ea.se, if they
had been united. Witness the Canaanitish nations,
whose divided situation rendered them an easy prey.
Witness England, which, when divided into separate
States, was twice conquered by an inferior force.
Thus it always happened to small States, and to great
ones, if divided. Or if, to avoid this, they connect
themselves with some powerful State, their situation
is not much better. This shows us the necessity of
combining our whole force, and, as to national pur
poses, becoming one State.
'A Union, Sir, is likewise necessary, considered with
relation to economy. Small States have enemies, as
well as great ones. They must provide for their
defence. The expense of it, which would be moderate
for a large Kingdom, would be intolerable ' to a petty
State. The Dutch are wealthy, but they are one of
the smallest of the European nations, and their taxes
are higher than in any other country of Europe. Their
taxes amount to forty shillings per head, when those
of England do not exceed half that sum. | We must
unite, in order to preserve peace among ourselves. If
we be divided, what is to prevent wars from breaking
out among the States? States, as well as individuals,
are subject to ambition, to avarice, to those jarring
passions which disturb the peace of society. What is
to check these? If there be a parental hand over the
whole, this, and nothing else, can restrain the unruly
conduct of the members. Union is necessary to pre
serve commutative justice between the States. 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
Vol. II. — 10

146 LIFE OF OLIVER ELLSWORTH.
holds ? Do we not already see in her the seeds of an
overbearing ambition ? On our 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
like Issachar of old, a strong ass crouching down be
tween two burdens ? New Jersey and Delaware have
done this, and have adopted the Constitution unani
mously. 'A more energetic system is necessary. The pre
sent is merely advisory. It has no coercive power.
Without this, government is ineffectual, or rather is
no government at all. But, it is said, " such a power
is not necessary. States will not do wrong. They
need only to be told their duty, and they will do it."
I ask. Sir, what warrant is there for this assertion ?
Do not States do wrong ? Whence come wars ? One
of tw'o hostile nations must be in the wrong. But, it
is said, " Among sister States, this can never be pre
sumed." But we do not know that. When friends
become enemies, their enmity is the most virulent.
The seventeen provinces of the Netherlands were once
confederated; they fought under the same banner.
Antwerp, hard pressed by Philip, applied to the other
States for relief. Holland, a rival in trade, opposed
and prevented the needed succors. Antwerp was
made a sacrifice. I wish I could say there were no
deeds of similar injustice springing up among us. Is
there not, in one of our States, injustice too barefaced
for Eastern despotism ? That State is small ; it does
little hurt to any but itself But it has a spirit that
would make a Tophet of the Universe.' But some
will say, "We formerly did well without any Union."
' Rhode Island is here alluded to.

THE CONNECTICUT CONVENTION. 147
I answer, our situation is materially changed. While
Great Britain held her authority, she awed us. She
appointed Governors and Councils for the American
Provinces. She had a negative upon our laws. But,
now, our circumstances are so altered, that there is no
arguing what we shall be from what we have been. It
is said, that other Confederacies have not had the
principle of coercion. Is this so ? Let us attend to
those Confederacies which have resembled our own.
Some time before Alexander, the Grecian States con
federated together. The Amphictyonic Council, con
sisting of deputies from those States, met at Delphos,
and had authority to regulate the general interests of
Greece. This Council did enforce its decrees by coer
cion. . . . After the death of Alexander, the Achaean
league was formed. The decrees of this Confederacy
were enforced by dint of arms.'
He points out other instances of Confederacies
having a coercive power, and thus proceeds : ' But, to
come nearer home, Mr. President, have we not seen
and felt the necessity of such a coercive power?
What was the consequence of the want of it during
the late war, particularly towards the close ? A few
States bore the burden of the war. While we, and
one or two more of the States, were paying eighty or
a hundred dollars per man to recruit the Continental
army, the regiments of some States had scarcely men
enough to wait on their officers. Since the close of the
war, some of the States have done nothing towards
complying with the requisitions of Congress. Others,
who did something at first, seeing that they were left
to bear the whole burden, have become equally remiss.
What is the consequence ? To what shifts have we
been driven ? To the wretched expedient of negotia
ting new loans in Europe, to pay the interest of the

148 LIFE OF OLIVER ELLSWORTH.
foreign debt. And, what is still worse, we have been
obhged to apply the new loans to the support of our
own civil government at home. Another ill-conse
quence of this want of energy, is, that treaties are not
performed. The treaty of peace with Great Britain
was a very favorable one for us. But it did not hap
pen perfectly to please some of the States, and they
would not comply with it. The consequence is, Britain
charges us with the breach, and refuses to deliver up
the forts on our Northern frontier.
' Our being tributaries to our sister States is in con
sequence of the want of a Federal system. The State
of New York raises sixty or eighty thousand pounds a
year by impost. Connecticut consumes about one-third
of the goods upon which this impost is laid, and, con
sequently, pays one-third of this sum to New York.
If we import by the medium of Massachusetts, she has
an impost, and to her we pay tribute. If this is done
when we have the shadow of a National Government,
what shall we not suffer when even that shadow is
gone ! If we go on as we have done, what is to become
of the foreign debt ? Will sovereign nations forgive us
this debt, because we neglect to pay ? or will they levy
by reprisals, as the law of nations authorizes them ?
Will our weakness induce 'Spain to relinquish the ex
clusive navigation of the Mississippi, or the territory
which she claims on the east side of that river? Will
our weakness induce the British to give up the
Northern posts? If a war breaks out, and our situa
tion invites our enemies to make war, how are we to
defend ourselves ? Has Government the means to
enlist a man, or buy an ox ? Or shall we rally the
remainder of our old army ? The European nations I
believe to be not friendly to us. They were pleased
to see us disconnected from Great Britain ; they are

THE CONNECTICUT CONVENTION. 149
pleased to see us disunited among ourselves. If we
continue so, how easy it is for them to portion us out
among them, as they did the Kingdom of Poland !
But, supposing this is not done, if we suffer the Union
to expire, the least that may be expected is, that the
European Powers will form alliances, some with one
State, and some with another, and play the States off
one against another, and that we shall be involved in
all the labyrinths of European politics. But I do not
wish to continue the painful recital; enough has been
said to show that a power in the General Government
to enforce the decrees of the Union is absolutely neces
sary .
' The Constitution before us is a complete system
of Legislative, Judicial, and Execu1;ive power. It
was designed to supply the defects of the former sys
tem ;' and, I believe, upon a full discussion, it will be
found calculated to answer the purposes for which it
was designed,'
His next speech, on the power of Congress to lay
taxes, will be likely to impress the reader very favor
ably. Mr. Webster, on reading an extract from it in
the Senate, referred to Ellsworth as ' a gentleman
who has left behind him, on the records of the Gov
ernment of his country, proofs of the clearest intelli
gence, and of the utmost purity and integrity of
character.' '
' Mr. President : — This is a most important clause
in the Constitution ; and the gentlemen do well to
offer all the objections which they have against it.
Through the whole of this debate, I have attended to
the objections which have been made against this
clause; and I think them all to be unfounded. The
' Webster's Works, vol. iii., p. 485.

150 LIFE OF OLIVER ELLSWORTH.
clause is general; it gives the General Legislature
"power to lay and collect taxes, duties, imposts, and
excises; to pay the debts, and provide for the common
defence and general welfare of the United States."
There are three objections against this clause: first,
that it is too extensive, as it extends to all the objects
of taxation; secondly, that it is partial; thirdly, that
Congress ought not to have power to lay taxes at all.
The first objection is, that this clause extends to all
the objects of taxation. But, though it does ex
tend to all, it does not extend to them exclusively. It
does not say that Congress shall have all these sources
of revenue, and the States none. All, excepting the
imposts, still lie open to the States. This State owes a
debt; it must provide for the payment of it. So do all
the other States. This will not escape the attention of
Congress. When making calculations to raise a reve-
^nue, they will bear this in mind. They will not take
away that which is necessary for the States. They
are the head, and will take care that the members do
not perish. The State debt, which now lies heavy
upon us, arose from the want of powers in the Federal
system. Give the necessary powers to the National
Government, and the State will not be again necessi
tated to involve itself in debt for its defence in war.
It will lie upon the National Government to defend
all the States, to defend all its members from hostile
attacks. The United States will bear the whole bur
den of war. It is necessary that the power of the
General Legislature should extend to all the objects
of taxation, that Government should be able to com
mand all the resources of the country; because no
man can tell what our exigences may be. Vfars have
now become rather wars of the purse than of the
sword. Government must, therefore, be able to com-

THE CONNECTICUT CONVENTION. 151
mand the whole powder of the purse ; otherwise, a hos
tile nation may look into our Constitution, see what
resources are in the po^wer of Government, and calcu
late to go a little beyond us ; thus they may obtain a
decided superiority over us, and reduce us to the
utmost distress. A Government which can command
but half its resources, is like a man with but one arm
to defend himself
' The second objection is, that the impost is not a
proper mode of taxation ; that it is partial to the
Southern States. I confess I am mortified when 1 find
gentlemen supposing that their Delegates in Conven
tion were inattentive to their duty, and made a sacri
fice of the interests of their constituents. If, however,
the impost be a partial mode, this circumstance, high
as my opinion of it is, would weaken my attachment
to it; for I abhor partiality. But I think there are
three special reasons why an impost is the best way
of raising a national revenue. The first is, that it is
the most fruitful and easy way. All nations have
found it to be so. Direct taxation can go but little
way towards raising a revenue. To raise money in
this way, people must be provident; they must con
stantly be laying up money to answer the demands of
the collector. But you cannot make the people thus
provident. If you would do anything to the purpose,
you must come in when they are spending, and take
a part with them. This does not take away the tools
of a man's business, or the necessary utensils of his
family. It only comes in when he is taking his plea
sure, and feels generous; when he is laying out a shil
ling for superfluities, it takes twopence of it for public
use, and the remainder will do him as much good as
the whole. I will instance two facts, which show
how easily and insensibly a revenue is raised by indi-

152 LIFE OF OLIVER ELLSWORTH.
rect taxation. I suppose people in general are not
sensible that we pay a tax to the State of New York.
Yet it is an incontrovertible fact, that we, the people
of Connecticut, pay annually into the treasury of New
York more than fifty thousand dollars. . . . All na
tions have seen the necessity and propriety of raising
a revenue by indirect taxation, by duties upon arti
cles of consumption. . . . The experiments which
have been made in our own country show the produc
tive nature of indirect taxes. The imports into the
United States amount to a very large sum. They
never will be less, but will continue to increase for
centuries to come. As the population of our country
increases, the imports will necessarily increase. They
will increase, because our citizens will choose to be
farmers, living independently on their freeholds, rather
than to be manufacturers, and work for a groat a day.
... It is a strong argument in favor of an impost,
that the collectors of it will interfere less with the in
ternal police of the States than any other species of
taxation. It does not fill the country with revenue
officers ; but is confined to the sea-coast, and is chiefly
a water operation. Another weighty reason in favor
of this branch of the revenue is, if we do not give it to
Congress, the individual States will have it. It will
give some States an opportunity of oppressing others,
and destroy all harmony between them. If we would
have the States friendly to each other, let us take
away this bone of contention, and place it, as it ought
in justice to be placed, in the hands of the General
Government. ' " But," says an honorable gentleman near me,
"the impost will be a partial tax; the Southern States
will pay but little, in comparison with the Northern."
I ask, what is the reason for this assertion ? Why,

THE CONNECTICUT CONVENTION. 153
says he, we live in a cold climate, and want warming.
Do not they live in a hot climate, and want quench
ing? Until you get as far south as the Carolinas,
there is no material difference in the quantity of
clothing which is worn. In Virginia, they have the
same course of clothing that we have ; in Carolina,
they have a great deal of cold, raw, chilly weather;
even in Georgia, the river Savannah has been crossed
upon the ice. And if they do not wear quite so great
a quantity of clothing in those States as with us, yet
people of rank wear that which is of a much more ex
pensive kind. In these States, we manufacture one-
half of our clothing, and all our tools of husbandry;
in those, they manufacture none, nor ever will. They
will not manufacture, because they find it much more
profitable to cultivate their lands, which are exceed
ingly fertile. Hence they import almost everything,
not excepting the carriages in which they ride, the
hoes with which they till the ground, and the boots
which they wear. If we doubt of the extent of their
importations, let us look at their exports. So exceed
ingly fertile and profitable are their lands, that a hun
dred large ships are every year loaded with rice and
indigo from the single port of Charleston. The rich
return of these cargoes of immense value will all be
subject to the impost. Nothing is omitted ; a duty is
to be paid upon the blacks which they import. From
Virginia, their exports are valued at a million sterling
per annum. The single article of tobacco amounts to
seven or eight hundred thousand. How does this
come back? Not in money; for the Virginians are
poor, to a proverb, in money. They anticipate their
crops; they spend faster than they earn. They are
ever in debt. Their rich exports return in eatables,
in drinkables, and in wearables. Ail these are subject

154 LIFE OF OLIVER ELLSWORTH.
to the impost. In Maryland, their exports are as
great in proportion as those in Virginia. The imports
and exports of the Southern States are quite as great,
in proportion, as those of the Northern. Where, then,
exists this partiality which has been objected? It
exists nowhere but in the uninformed mind.
' But there is one objection, Mr. President, which is
broad enough to cover the whole subject. Says the
objector. Congress ought not to have power to raise
any money at all. Why? Because they have the
power of the sword ; and, if we give them the power
of the purse, they are despotic. But, I ask. Sir, if ever
there were a government without the power of the
sword and the purse ? This is not a new-coined
phrase ; but it is misapplied. It belongs to quite
another subject. It was brought into use in Great
Britain, where they have a King vested with heredi
tary power. Here, say they, it is dangerous to place
the power of the sword and the purse in the hands of
one man, who claims an authority independent of the
people ; therefore, we will have a Parliament. But,
the King and Parliament together, the supreme power
of the nation, they have the sword and the purse. And
they must have both; else, how could the country be
defended? For the sword without the purse is of no
effect; it is a sword in the scabbard. But does it fol
low, because it is dangerous to give the power of the
sword and purse to an hereditary Prince, who is inde
pendent of the people, that, therefore, it is dangerous
to give it to the Parliament — to Congress, which is
your Parliament — to men appointed by yourselves,
and dependent upon yourselves? This argument
amounts to this ; you must cut a man in two in the
middle, to prevent his hurting himself . . . This

THE CONNECTICUT CONVENTION. 155
Constitution defines the extent of the powers of the
General Government. If the General Legislature
should, at any time, overleap their limits, the Judicial
Department is a constitutional check. If the United
States go beyond their powers, if they make a law
which the Constitution does not authorize, it is void;
the judicial power, the national judges, who, to
secure their impartiality, are to be made independent,
will declare it to be void. On the other hand, if the
States go beyond their limits, if they make a law
which is a usurpation upon the General Government,
the law is void; and upright, independent judges will
declare it to be so. Still, however, if the United States
and the individual States will quarrel, if they want to
fight, they may do it, and no frame of government can
possibly prevent it. It is sufficient for this Constitu
tion, that, so far from laying them under a necessity
of contending, it provides every reasonable check
against it. But, perhaps, at some time or other^ there
will be a contest; the States may rise against the
General Government. If this do take place, if all the
States combine, if all oppose, the whole will not eat
up the members, but the measure which is opposed to
the sense of the people will prove abortive. In repub
lics, it is a fundamental principle that the majority
govern, and that the minority comply with the general
voice. How contrary, then, to republican principles,
how humiliating, is our present position ! A single
State can rise up, and put a veto upon the most im
portant public measures. We have seen this actually
take place. A single State has controlled the general
voice of the Union; a minority, a very small minority,
has governed us. So far is this from being consistent
with republican principles, that it is, in effect, the

156 LIFE OF OLIVER ELLSWORTH.
worst species of monarchy. Hence, we see how
necessary for the Union is a coercive principle. No
man pretends the contrary ; we all see and feel this
necessity. The only question is, shall it be a coercion
of law, or a coercion of arms ? There is no other pos
sible alternative. Where will those who oppose a
coercion of law come out? Where will they end?
A necessary consequence of their principles is a war
of the States one against the other. I am for coercion
by law — that coercion which acts only upon delin
quent individuals. This Constitution does not attempt
to coerce sovereign States, in their political capacity.
No coercion is applicable to such bodies, but that of
an armed force. If we should attempt to execute the
laws of the Union by sending an armed force against
a delinquent StatCj it would involve the good and
bad, the innocent and guilty, in the same calamity.
But this legal coercion singles out the guilty indi
vidual, and punishes him for breaking the law^s of the
Union. All men will see the reasonableness of this;
they will acquiesce, and say. Let the guilty suffer.' . . .
The reporter of the Debates in the Connecticut Con
vention says, ' that* the Constitution was canvassed
fully and critically. Every objection was raised against
it, which the ingenuity and invention of its opposers
could devise. The writer of this account could wish
to exhibit to public view (though he is sensible he
could do it but imperfectly) the w^hole debates upon
this interesting subject ; but is unable to do it. Suf
fice it to say, that all the objections to the Constitu
tion vanished before the learning and eloquence of a
Johnson, the genuine good sense and discernment of a
Sherman, and the Demosthenian energy of an Ells
worth.' »

THE CONNECTICUT CONVENTION. 157
The men who had risen to eminence in Connecticut
since the beginning of the Revolutionary troubles, and
who now exercised a controlling influence upon public
opinion, were found, with scarcely an exception, the
advocates of the proposed Constitution. With such
support, it is not surprising that the Connecticut Con
vention should ratify it by an overwhelming majority.
The vote stood, one hundred and twenty-eight in
favor, and forty against ratification.

158 LIFE OF OLIVER ELLSWORTH.

CHAPTER X.
1789-1796.
MEMBER OF THE UNITED STATES SENATE.
The first Congress under the new Constitution met
at New York, March 4th, 1789. Ellsworth and John
son appeared and took their seats as Senators from
Connecticut. A quorum of members, however, did
not assemble until the 6th of April. The business of
the Senate, with a single exception, both Legislative
and Executive, was transacted with closed doors, until
the second session of the third Congress. We have,
therefore, but a meagre official report of the part Ells
worth enacted in that body. From collateral sources,
however, we know that his services were very import
ant, and elicited the highest encomiums of those who
witnessed them. We have already observed that he
had business talents of a very high order; and they
found an appropriate field for their display, in organ
izing and putting in operation the new Government.
Without precisely such talents, the affairs of mankind
would sink into confusion and disorder. Without them
the operations of government could not go on. Yet
eloquence attracts more immediate attention, and wins
more general applause. This could hardly be other
wise. The latter appeals directly to our senses and feel
ings, while the former affect us only in their noiseless
results. Eloquence, as a means to raise the spirits and

ME.MBER OF U. S. SENATE. 159
rally the energies of mankind, in some great crisis, can
not be too highly estimated. In some instances it has
averted the downfall of States, and in others restored
their liberties. The career of the renowned orators of
the world shows how vast and abiding has been its in
fluence. But, when the critical moment is overpast,
when the resolutions which it has inspired are to be
carried into effect, then another order of ability is re
quired. Then, the actor assumes the superior place ;
then, a Patrick Henry yields to a Washington, and a
Lee to a Jay. It is true, powers of eloquence and
powers of action may be combined in the same person,
as has been seen in very conspicuous instances; but,
for the most part, they appear separately, or in very
disproportionate union.
The day after the Senate was in a capacity to act,
Ellsworth was appointed Chairman of a Committee to
bring in a bill for organizing the Judiciary of the
United States, This labor chiefly devolved on him,
though, doubtless, he was materially assisted by the
aid and suggestions of his colleague, Dr, Johnson, and
Judge Patterson of New Jersey, who were members
of the Committee, The original bill, in his hand
writing, is still preserved in the archives of the Gov
ernment. It passed with but little alteration from the
original draft. It is unknown what arguments were
employed against it in the Senate ; but, in the House,
it was decried as wholly unnecessary ; as establishing
a government within a government, which would jos
tle and finally destroy each other, A Supreme Court,
with appellate jurisdiction, together with State Courts
of Admiralty, was the only system, it was said, that
the necessities or wishes of the people required. Liver-
more, of New Hampshire, declared that he could not

160 LIFE OF OLIVER ELLSWORTH,
conceive the occasion of the new system, ' unless it be
to plague mankind.'
The reasons that determined Ellsworth in dividing
the States into districts, and instituting inferior Fede-
ral Courts, are stated in a letter to his friend. Judge
Law, of Connecticut : —
'To annex to State Courts jurisdiction, which they
had not before, as of admiralty cases, and, perhaps, of
offences against the United States, would be consti
tuting the Judges of them, pro tanto, Federal Judges,
and, of course, they would continue such during good
behavior, and on fixed salaries, which, in many cases,
would illy comport with their present tenures of office.
Besides, if the State Courts, as such, could take cog
nizance of those offences, it might not be safe for the
General Government to put the trial and punishment
of them entirely out of its own hands. One Federal
Judge, at least, resident in each State, appears un
avoidable ; and without creating any more, or much
enhancing the expense, there may be Circuit Courts,
which would give system to the Department, settle
many cases in the States that would otherwise go to
the Supreme Court, and provide for the higher grades
of offences. ... 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 eco-
n.omical, systematic, and efficient, than the one under
consideration.' '
' Oliver Ellsworth to Hon. Richard Law, New York, August 4th,
1789. The letter from which this extract was taken was courteously
placed at uiy disposal by Mr. Edward Law, of the Philadelphia Bar,
and a grandson of Judge Law. The letter itself, however, had pre
viously been printed in ' Wharton's State Trials.'

MEMBER OF U. S.' SENATE. 161
The first session of Congress was chiefly occupied in
creating the different Departments of the Government,
and putting the new system into operation. The
second session, which commenced at New York, on
the 8th of January, 1790, found an ample field for '
discussion in Hamilton's- report for the maintenance
of the public credit. The plan recommended by the
Secretary was admirably calculated to strengthen the
Federal Government, and attach to it the most power
ful classes in the community. By assuming the State
debts, the whole body of creditors had a direct inte
rest in giving the Government a cordial support. A
project so extensive, in its consequences, as the Ame
rican Funding System, very naturally provoked the
warm opposition of the advocates of State sovereignty,
as contra-distinguished from the advocates of Federal
principles. Ellsworth, known in the Federal Convention for his
zealous advocacy of the independence and co-ordina
tion of the several States, was wise enough to perceive
that, after their acceptance of the proposed scheme of
government, it was folly to cripple its power, and im
pede its benefits, by endeavoring to narrow and cir
cumscribe the authority with which it was actually
invested. The powers of the Constitution, he justly
argued, were all vested, parted from the people, from
the States, and vested in the Government which the
Constitution contemplated ;' that Government he would
strengthen and confirm. Pie would give it all needed
constitutional facilities to discharge its various func
tions, and perform its various obligations. Hence, to
the general features of Hamilton's financial scheme,
' Argument on President's power of removal. Adams's Works,
vol. iii., p. 409.
Vol. IL — 11

162 LIFE OF OLIVER ELLSWORTH.
he gave his energetic support ; but to several of the
details he objected.
' Our friend, Mr. Ellsworth,' wrote Wolcott, at that
time Auditor in the Treasury, . . . 'has been of
opinion that it was not expedient to attempt to fund
the public debt at a higher rate of interest than four
per cent. That this sum, punctually paid, would
answer the expectations of the creditors, the require
ments of justice, and would better secure the public
honor than a promise of a higher division, which
would, under the circumstances of this country, be
attended with greater risque of failure. He has also
been dissatisfied with the Secretary's proposal of leav
ing one-third of the debt unfunded for ten years, as
this measure would tend to encourage speculations, and
would leave, after ten years, a great burden upon the
the country, with little advantage to the creditors, who
would alienate their demands to foreigners, who would
purchase that part of the debt at a low rate. These
opinions have been supported by him with all that
boldness and reason which give him a predominant
influence in the Senate.''
Thus early had Ellsworth achieved that position in
the Senate which he maintained, with increasing repu
tation, so long as he continued a member of that
body. He was, says John Adams, the firmest pillar
of Washington's whole Administration, in the Senate.'^
Soon after the opening of the second session of Con
gress, the President communicated to them the inte
resting fact that North Carolina had ratified the Con-

' Gibbs's Federal Administrations, vol. i., p. 49, July 20th, 1790.
' Adams's Works, vol. x , pp. 108, 112. Vide post, p. 182.

MEMBER OF U. S. SENATE. 163
stitution; and, on the 1st of June, that Rhode Island
had done the same. This latter State had shown a
very persistent determination to remain independent ;
but a bill which passed the Senate, and was pending
in the House, to prevent ' goods, wares, and merchan
dizes' from being brought thence into the United
States, doubtless convinced her that she could not pro
fitably hold herself aloof from the Union. Besides, the
same bill authorized the demand of a sum of money
from her; being, probably, her proportion of the pub
lic debt. It was to this measure, doubtless, that Ells
worth refers in the following letter to a friend : —
' Rhode Island,' he says, ' is, at length, brought into
the Union, and by a pretty bold measure in Congress,
which would have exposed me to some censure had it
not produced the effect which I expected it would, and
which, in fact, it has done. But " all's well that ends
well." The Constitution is now adopted by all the
States, and I have much satisfaction, and perhaps
some vanity, in seeing, at length, a great work
finished, for which I have long labored incessantly."
In August, Congress adjourned to meet at Philadel
phia, on the first Monday of December, that city
having been fixed upon as the temporary, and the Po
tomac as the permanent seat of Government.^ The
seeds of a powerful opposition to the Administration
had already begun to germinate. ' The Northern
' New York, June 7th, 1790,
' The Potomac, it is probable, would not have been fixed on as the
seat of Government, had it not been conceded as a ' countervailing
advantage' to the funding of the State debts — the Northern States
desiring the latter, and the Southern the former. The two measures
were passed as a compromise.

164 LIFE OF OLIVER ELLSWORTH.
States,' thus wrote Wolcott, ' are somewhat unhappy
with respect to high salaries and pensions, the Middle
States are vexed at the assumption of the State debts,
and the Southern planters are execrating the politics
of the Quakers.' ' Virginia voted that the assumption
of the State debts was unconstitutional ; the Legisla
ture of North Carolina was not less hostile to the
scheme ; but the measure which more strongly tended
than any other, at this particular time, to divide the
community into distinct parties, was the charter of a
National Bank.
When Congress assembled in December, the Secre
tary of the Treasury recommended the creation of a
Bank as a necessary instrument for the custody and
transmission of the public monies. He also recom-
,.«iended a duty on ardent spirits, whether imported or
distilled in this country. Both these important mear
sures received the support of Ellsworth. When the
latter resulted in the outbreak known as the Whiskey
Insurrection, he thus wrote his friend Wolcott : —
' The use of military force against the insurgents I
' Federal Administrations, by Gibbs, vol. i., p. 58 ; September
21st, 1790, The petition of the Quakers, signed on behalf of the
Yearly Meeting, for Pennsylvania, New Jersey, Delaware, and the
western parts of Maryland and Virginia, asking Congress whether 'it
be not, in reality, within your power to exercise justice and mercy,
which, if adhered to, we cannot doubt, must produce the abolition of
the slave trade,' had occasioned much angry debate in Congress, and
much feeling in the slaveholding States. The petition of the Quakers
was followed by one from the Pennsylvania Abolition Society, of
which Franklin was President, urging upon Congress 'to counte
nance the restoration of liberty to the unhappy men, who, alone, in
this land of freedom, are degraded into perpetual bondage.' These
petitions, and the subsequent debates, had excited a good deal of
alarm.

MEMBER OF U, S. "SENATE. 165
believe to be indispensable, and a measure in which
the Executive may rely on the approbation-and steady
support of Connecticut, and New England generally.
... As to a call on the militia of this State, it cer
tainly should not take place, unless it appears that a
force deemed adequate cannot be obtained nearer
home. . . . Should the Executive, however, who sel
dom mistakes, and, as we believe, never, judge it ex
pedient to call for a detachment of the Connecticut
militia, a call a few weeks hence would be less incon
venient for them than at present; but little time would
be necessary to prepare. As to compensation — the
soul of patriotism — they have been accustomed, as
you know, to as much pay, or the assurance of it, as
their time was supposed to be worth, the privates
about forty dollars a month, which they would the
more expect in a tour that they should conceive not
to be properly their own, but to result from the delin
quency of others.' '
The first Congress expired on the third of March,
and with it terminated Ellsworth's term in the Senate,
he having been drawn in the class whose seats were to
be vacated at the end of the second year. He was re
elected, however, by the Connecticut Legislature, and
took his seat at the opening of the second Congress in
October. His labors henceforward were of the most
interesting character. The domestic policy of the
Government had, south of New England, stimulated
into activity a powerful opposition. Its foreign policy,
as the French revolution began to develop its tremen
dous energies, inflamed the elements of discontent
into the highest exasperation. The Jay treaty, as we

' August 24th, 1794. Federal Admini.^tration, veil, i., p. 158.

166 LIFE OF OLIVER ELLSWORTH.
shall presently see, furnished an object upon which
the whole virulence of the opposition was concen
trated. The grave questions that constantly arose in the
Senate — questions of constitutional law, questions of
policy, requiring study and research — taxed a con
scientious mind hke Ellsworth's to its utmost capacity.
The field of investigation was new and unexplored ;
but not until every part of it was carefully examined,
did he form his conclusions. His career in the Senate
' contributed much to evolve the latent powers of his
vigorous mind, which was roused and elevated by the
collision of powerful talents, and the ardent investiga
tion of great questions. Every important point which
came under discussion in the Senate was examined by
him with the most laborious application, and revolved
again and again with the most unremitted and ardent
meditation. During the course of such an investiga
tion, his mind seemed to be tasked to its utmost
strength ; and he would pass whole days, and some
times nights, in walking up and down his chamber,
absorbed in mental labor. It was almost impossible
to divert his attention towards any other object, before
he had thoroughly formed his conclusions on the sub
ject which engaged him. When, at last, the question
which had thus 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 he had
once definitely made up his opinion, after this mature
and impartial examination, he was immovably firm in
his purpose, and was often thought somewhat too
strenuous and uncompromising in the support of his
own particular views.''
' Analectic Magazine, vol. iii., p. 391.

MEMBER OF U. S. SENATE. 167
The opening of the French Revolution was hailed,
in the United States, by men of all parties, as an
auspicious event. The Constitution of 1791 was very
generally approved ; but when the National Conven
tion inaugurated another revolution, abolished the
newly-established Constitution, and brought the King
to the scaffold, a great change ensued in the senti
ments of the Federalists. They perceived that all
this violence, these torrents of blood, instead of pro
moting the cause of liberty and free government, must
end in the iron rule of despotism. The Republicans,
on the contrary, regarded the overthrow of monarchy,
and the establishment of a Republic in France, as the
precursor of the final triumph of free principles. When,
therefore, the friendly aid of the United States was in
voked by France, in the war then raging, a large por
tion of the people were cordially in favor of granting
it. Beyond the sympathy which was really felt for
the French, thousands believed that the treaty of alli
ance bound the United States to join in the war, and
that gratitude and good faith required this sacrifice at
their hands. Besides, the course of Great Britain
towards the United States, since their independence
had been achieved, in part the result of our own con
duct in obstructing the payment of British debts,
and in part the result of ' a national insolence against
us'' — heightened and increased the resentment which
a long and distressing war had engendered.
News of the war between France on one hand, and
Great Britain and Holland on the other, arrived in
this country in the spring of 1793. Genet, the new
French Minister, came at the same time. Inspired
' John Adams.

168 LIFE OF OLIVER ELLSWORTH.
with all the zeal and enthusiasm that inflamed the
partisans of Robespierre and Danton, and endowed
with a good share of the audacity which characterized
the latter, he was determined to force the United
States to take a part in the war. He proceeded in the
most extraordinary manner, issued naval and military
commissions, and gave orders for fitting out and arm
ing privateers.
The Administration, after careful deliberation, deter
mined to observe a strict neutrality, ' and pursue a
conduct friendly and impartial towards the belligerent
Powers.' Washington's proclamation to that effect was
issued on the 22d of April, 1793, and occasioned the
greatest dissatisfaction on the part of the Opposition.
It increased the bitterness of party animosity, and
brought upon the Administration the concentrated
force of party virulence.
\Ellsworth, believing that neutrality was important
to the best interests of his country, zealously defended
the measure, and gave to Washington his cordial and
unwavering support. The hectoring and insolent con
duct of Genet, supported and applauded as it was by
the Jacobin societies, was too intolerable to be borne,
and the Administration soon decided to put an end to
his mission. A letter, requesting his recall, was de
spatched on the 16th of August, and with what effect
the following extract of a letter from Ellsworth to
Judge Law will show : — 'As to the war between this
country and England,' thus he writes, 'so much
dreaded by some and wished for by others, I think it
will not take place. Complaint of M. Genet has been
made to his Court, with a request of his recall. The
answer is, that they disapprove of his conduct, and
will immediately recall him. The fact, however, is,

MEMBER OF U. S. SENATE. 169
that he has not done but part of the mischief he was
sent to do.''
The course of the Administration in preserving the
peace of the country, in maintaining the principles set
forth in the President's proclamation of neutrality, had
the effect, uniteid with other causes of dissatisfaction,
such as the, assumption of the State, debts, and the
creation of a National Bank, to give the Opposition a
majority in the House. To that majority, the con
duct of Great Britain towards this country — a conduct
chiefly owing, as we have had occasion to remark, to
insolence, and a determination to make our neutrality
inconvenient and unprofitable — was a subject of great
indignation. As a means of retaliation, Mr. Madison
introduced his commercial resolutions, based on a pre
vious report of Jefferson's, proposing restrictions and
additional duties on the manufactures and navigation
of nations not having commercial treaties with the
United States, and a reduction of duties on the ton
nage of vessels belonging to nations having such
treaties. These resolutions of Madison were aimed at Great
Britain, with whom we had no treaty of commerce,
and designed to favor France, with whom we had.
Among the Federalists, they were regarded with alarm
and great disapprobation. Undoubtedly, they were
calculated to complicate affairs with England, and, if
adopted, might have resulted in war. Nevertheless,
we cannot help thinking that they proposed a proper
means of retaliation. The effect of their introduction
' Ellsworth to Law, January 20th, 1794. ' One more Genet in
this country,' wrote Chauncey Goodrich to Oliver Wolcott, ' will
make us sick of diplomatiques. If we want to do any business abroad,
give some good fellow a letter of attorney, and let him do it.' Federal
Administrations, vol. i., p. 130.

170. LIFE OF OLIVER ELLSWORTH.
into the House was the conception of a special mission
to England. While the Administration neglected no
means to put the country in a state of defence, they
would, nevertheless, preserve peace, if it could be done
consistently with honor and safety. To Ellsworth, it
is believed, belongs the credit of suggesting the means
of attaining this object.
While the discussion on Madison's resolutions was
proceeding, in the latter part of February, or the 1st
of March, Ellsworth, Strong, Rufus King, and Cabot,
held a consultation on the condition of affairs. The
result of their deliberations was the proposition of an
immediate special mission to England. This, it was
thought, would have the effect to stay further proceed
ings in Congress, and avert an impending war. Ells
worth was deputed to confer with the President, and
recommend to him the project of a mission, and Jay or
Hamilton as the proper person to fill it. Accordingly, he
had an interview with Washington, and a long and fami
liar conversation upon the threatening aspect of pubhc
affairs. The President evinced great concern, and said,
' Well, Mr. Ellsworth, what can be done ?' The latter
replied by stating that the result of the deliberations
of himself and friends was, that an immediate special
mission to England ought to be instituted. 'After a
few further observations and inquiries. General Wash
ington asked Mr. Ellsworth who, in case that course
should be adopted, would, in his opinion, be a proper
person for that appointment. Mr. Ellsworth replied,
naming the persons they had agreed to recommend to
the President. From the conversation with General
Washington at this interview, as well as from the tenor
of all his previous private correspondence and pubhc
communications to Congress, it was apparently to him
a new project. At the close of the conversation, as

MEMBER OF U. S. SENATE. 171
Mr. Ellsworth rose to depart, " Well, Sir," said the
President, " I will take this subject into considera
tion."" On the 5th of April, 1794, Ellsworth thus wrote
Oliver Wolcott, senior : — 'I thank you for your let
ter, received some time since, and for your opinion of
Mr. Madison's propositions. Probably you do not mis
take, in supposing them to be insidious, and incapable
of producing any other effect than mischief They
have not, however, yet passed, and I trust will not.
The debts of the South, which were, doubtless, among
the causes of the 'late revolution, have ever since
operated to obstruct its benefits, by opposing compul
sive energy of government, generating mist and irrita
tion between this country and Great Britain, and, of
course, giving a baleful ascendency to French influence.
Under these auspices, an extensive combination of the
wicked and the weak has been arranged for some time
past, and will probably continue its efforts to disturb
the peace of this country, so long as the European
contest continues in its present state of dubiety. Some
precipitate measures are now contemplated in Con
gress ; but I hope in a few days we shall see the busi
ness turned into a channel of negotiation, and a
respectable special Envoy sent to London, on the sub
ject of commercial spoliations. A negotiation of this
kind, with proper interior arrangements to give it
weight, would, I presume, save us from war.' ^
It was. believed by the Federalists, that the viru
lence manifested in Virginia and the South against
' MS. by Mr. Joseph Wood. Pitkin, in his History, says, that
such a proposition was made to General Washington on the 10th of
March, this probably being the date of Ellsworth's interview with
him. ^ Federal Administrations, vol. i., p. 134.

172 LIFE OF OLIVER ELLSWORTH.
England, and the opposition to measures which gave
additional strength and vigor to the General Government,
was in consequence of the extensive debts owing in
those States. The planters supposed that the Revolution
had thrown them off: but the treaty revived them,
and the Federal Courts furnished the means of prose
cuting them. ' The prospect of poverty, and depen
dence on the Scotch merchants, is what they cannot
view with patience.' ' It was supposed that another
war with England was desired by them as a means of
finally extinguishing these perplexing claims, or that
they wished so far to weaken the Tederal authority as
would render their recovery impossible. But motives
of this character, while they might have had influence
in individual cases, or in this or that locality, are in
adequate to explain the general opposition to the
Administration- which now began to organize itself,
and especially at the South. There were cogent causes
of war against England; there was a natural and
strong sympathy for France ; and, on the part of
those who had objected to the Constitution on the
ground that, in its practical operation, it would be
likely to overshadow and destroy the independence of
the States, there was a lively apprehension that the
domestic policy of the Government would lead directly
to consolidation. Here, then, we have sufficient grounds,
without imputing dishonorable motives, on which a
party might desire war with England, and at the
same time wish to circumscribe the Federal authority.
On the 16th of April, Jay was nominated as special
Envoy to England, and after a discussion of three
days, he was confirmed by a vote of eighteen against
' Wolcott to Wolcott, senior, February 8th, 1793. Ibid. vol. i.,
pp. 85, 86.

MEMBER OF U. S. SENATE. 173
eight.' On the very day the nomination was made to
the Senate, Ellsworth thus wrote Wolcott : — ' In a
late letter,' he says, ' I suggested to you the idea of
turning our grievances into a channel of negotiation.
I now venture to assure you that Mr. Jay will be sent
as special Envoy to the Court of London, with such
powers and instructions as probably will produce the
desired effect. His nomination will come forward this
day or to-morrow. He is now here, and has this mo
ment informed me of his determination to accept the
appointment, if it shall be made. This, Sir, will be a
mortifying movement to those who have endeavored,
by every possible means, to prevent a reconciliation
between this country and Great Britain. . . . The
embargo, I trust, will not be continued beyond the
thirty days for which it was laid. It ought not to
have been laid at all.' ^
The embargo referred to by Ellsworth, and which it
seems he opposed, was among the number of defensive
measures that Congress thought the situation of the
country demanded ; such as the fortification of the
principal posts, the raising a corps of engineers, and
obtaining a supply of arms. Madison's propositions
were defeated,^ and in June Congress adjourned.
The outbreak of the Western insurrection, to which
we have already alluded, and the success of Jay's mis
sion, were now objects of great solicitude. We have
seen, in a previous volume, the progress and result of
that mission.'' On the 8th of June, 1795, the Jay
' Vol. i., p. 403.
^ April 16th, 1794. Federal Administrations, vol. i., p. 135. The
embargo was laid March 26th, and continued until May 25th.
' They were defeated in the Senate" by the casting-vote of the Vice-
President. '¦ Vol. i., pp. 401-414.

174 LIFE OF OLIVER ELLSWORTH.
treaty was laid before the Senate, specially convened
to consider it. Its provisions were discussed with
much acrimony ; but in the end it was finally rati
fied. When the public were put in possession of the
treaty, their indignation kept no bounds. Washing
ton's hesitation, real or apparent, to give it his sanc
tion, increased the noise and tumult of popular opposi
tion. Ellsworth, who had taken a prominent part in
the inception of the mission, and earnestly defended
its results, was not a little restive under what seemed
wavering or indecision on the part of the President.
His solicitude as to the decision of the Executive was
intense. He could not sleep, and 'continued day and
night, for about a fortnight, walking his hall in the
most intense anxiety as to the result, and scarcely
closed his eyes in sound sleep for several successive
nights.' '
On the 15th of August, he wrote Wolcott as fol
lows : — 'If the President decides wrong, or does not
decide soon, his good fortune will forsake him. N. E.^
is tolerably quiet, and will be more so as the subject
becomes more understood ; but I am to be responsible
only for Connecticut.' ^ Five days later, having, mean
while, been informed that Washington had signed the
treaty, he wrote Wolcott again. ' I am glad the Pre
sident,' he says, ' has done, at last, what I am unwill
ing to believe he ever hesitated about, and the delay
of which has not been without hazard and some mis
chief The crisis admits not of the appearance of inde
cision, and, much less, of steering any course but one.
There is less reason to be anxious for the Eastern
' MS. Memoir by Mr. J. Wood. ^ New England.
''' Federal Administrations, vol. i., p. 225.

MEMBER OF U. S. SENATE. 175
quarter than there was some weeks since. . , . Gov
ernor Huntington was here yesterday, on his way to
Dartmouth, and loves peace so well, that, to make sure
of it, he wishes we had taken the twelfth article too.'
When Congress assembled in the following Decem
ber, it soon became manifest that the House would not,
without serious opposition, appropriate the money ne
cessary to carry the treaty into effect. ' They are just
now entering upon the anxious discussion,' wrote Ells
worth, ' and will, I trust, after spending a great deal
of time in doubtful debate and menacing movements,
finally conclude that there would be too much respon
sibility in deciding wrong.' ^ A call was made upon
the President, to lay before the House the papers
relating to the negotiation; but, after mature reflec
tion, he decided that compliance with the call was im
proper. Ellsworth, who had, in the meanwhile, be
come Chief Justice, drew up an argument against the
right of the House to demand the papers; and the
grounds upon which the Executive proceeded, although
Severely criticised at the time, were obviously just and
constitutional. We have seen that Rutledge's opposition to the
treaty was warmly resented by the leading Federal
ists, and, among others, by Ellsworth, When the
Chief Justiceship was tendered Rutledge, his senti
ments respecting the treaty were unknown ; indeed,
at that time, he was not aware of its contents, and, of
course, had formed no opinion. Whether Washington
shared in the general surprise, when it became known
that Rutledge had ranked himself among the oppo
nents of the treaty, does not appear; but whether he
' Federal Administrations, vol. i., p. 226.
« Ellsworth to Wolcott, senior, j\Iaroh 8th, 1796. Ibid., p. 306.

176 LIFE OF OLIVER ELLSWORTH.
did or not, his obvious course was to submit the nomi
nation to the Senate. ' With regard to Mr. Rutledge,'
wrote Ellsworth, ' it certainly was difficult, after he
had come, not to commission him. If the evil is with
out remedy, 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-dis
posed friends of the Government.' ' It was unknown
to the Federalists that Rutledge had been actually
commissioned since the 1st of July, and that the in>
strument itself remained in the State Department, as
a mere matter of convenience, until he should arrive
in Philadelphia to hold the August term of the Su
preme Court.^ But, however indignant and surprised
they were at the announcement of his promotion to
the highest post in the Judiciary, following close, as it
did, upon the publication of his speech on the treaty,
they did not, we are persuaded, finally reject his nomi
nation on merely political grounds. The unhappy
condition of his intellect had become known, and his
rejection, as we have elsewhere observed, was doubt
less the dictate of prudence.'' We shall presently see
that this rejection resulted in Ellsworth's promotion to
the vacant post. Meanwdiile, we may glance at the
condition of parties in the country.
The opposition to the Administration was steadily
increasing, and gaining consistency and confidence.
They had already obtained a majority in the House
of Representatives, and the Federalists looked forward
to the election of Jefferson, as the successor of Wash
ington, as by no means an improbable event. This
prospect was a source of lively apprehension and
' Ellsworth to Wolcott, August 20th, 1795. Federal Administrar
tions, vol. i., p. 226.
' See vol. i., p. 632, 638. ' Ibid., p. 641,

MEMBER OF U. S. SENATE. 177
alarm. Ellsworth was among those who believed that
the highest and best interests of the country would be
unsafe in Jefferson's hands; that his animosity towards
England, and .his partiality for France, would hurry
him into aline of conduct injurious, if not destructive,
to its peace, welfare, and harmony. His opinion of
Jefferson is disclosed in the following extract of a let
ter written after his death : —

' The late Judge Ellsworth, of Connecticut,' says
the writer, 'was universally considered one of the most
profound men in our country. He was one of the real
nobles of nature. When I was at Congress, in the
winter of 1797, Mr. Ellsworth was a member of the
Senate, and we boarded at the same house.' At the
election the fall before, Mr. Jefferson was the competi
tor of Mr. Adams for the Presidency, and came near
to gaining the office. The circumstance excited much
anxiety and alarm amongst the Federal members in
Congress. I was one evening sitting alone with Mr.
Ellsworth, when I asked him the question. Why the
apprehensions of Mr. Jefferson's being President should
occasion so much alarm ? at the same time observing
that it could not be supposed he was an enemy to his
country, or would designedly do anything to injure
the Government as constitutionally established. Mr.
Ellsworth, after a short pause, replied, " No," it is not
apprehended that Jefferson is an enemy to his coun
try, or that he would designedly do anything wrong.
But it is known he is a visionary man, an enthusiastic
disciple of the French Revolution, and an enemy to
' The writer has mistaken the year : in 1797, Ellsworth was Chief
Justice, and not a Senator.
Vol. IL — 12

178 LIFE OF OLIVER ELLSWORTH.
whatever would encourage commercial enterprise, or
give energy to the Government. It is apprehended
that, if he were President, he would take little or no
responsibility on himself The nation would' be, as it
were, without a head. Everything would be referred
^to Congress. A lax, intriguing kind of policy, would
be adopted ; and while arts were practised to 'give
direction to popular sentiment, Mr. Jefferson would
affect to be directed by the will of the nation. There
would be no national energy. Our character would
sink, and our weakness invite contempt and insult.
Though Mr. Jefferson would have no thoughts of war,
his zeal in the French cause, and enmity to Great
Britain, would render him liable to secret influence,
that would tend to the adoption of measures calcu
lated to produce war with England, though it was not
intended, and the nation might be plunged into a war
wholly unprepared."'
We shall see, hereafter, that, when Jefferson was
actually elected President, Ellsworth was disposed to
yield to the unwelcome choice, without murmur or
complaint.' Ellsworth's service in the Senate was very laborious.
The subjects that engaged his attention were of great
magnitude and variety. Questions of constitutional
law, finance, commerce, and political economy, were to
be investigated and opinions formed. The faithful
manner with which he performed his duties did much
to open and expand his mind. 'A distinguished gen
tleman, whose early and constant habits of intimacy
with Mr. Ellsworth afforded him the most ample op
portunities of observing the progress and character of
' See post p. 259.

MEMBER OF U, S. SENATE. 179
his mind, has expressed his opinion, that in no part
of his life did he display a more evident and remark
able development and progressive improvement of
talent than during the term of his service in the
Senate of the United States. This period extended
nearly to the fifty-second year of his age, long before
which time of life the intellectual powers of most men
have arrived at their full maturity, and, if not per
fectly stationary, are at least become awkward and
unpliable to any new trains of thought, or unaccus
tomed mode of mental exertion."
The measures of Washington's administration he
supported with a zeal and ability surpassed by no
member of the Senate. Though ardent and energetic
in advocating his line of policy, he was too earnest,
sincere, and true, to employ any other weapons than
those drawn from reason and legitimate argument. As
a ' parliamentary orator, his characteristic features
were strength and originality of thought. In argu
ment and debate he was always powerful and impres
sive, frequently ardent and animated ; yet this ardor
was rather the earnest vehemence of strong reason,
than the glow of imagination, or the warm burst of
feeling. With few of the external graces of the orator;
with little ornament or polish of language'; not very
copious ; not very flowing ; he had, in an uncommon
degree, the power of commanding attention and en
forcing conviction. He satisfied or subdued the reason,
with little endeavor either to excite the feelings, or to
gratify the fancy.' ^ Without indulging in personali
ties, there was yet a severity in his argumentation, a
vigor and vehemence of manner, that was sometimes
as annoying to the discomfited advocate of opposing
' Analectic Magazine, vol, iii., p. 392. ' Ibid., p. 402.

180 LIFE OF OLIVER ELLSWORTH.
views as sarcasm and invective. On one occasion,
Gunn, of Georgia, smarting under a speech of Ells
worth's, expressed a determination to send him a chal
lenge. This would have been a very safe proceeding,
as it was well known that Ellsworth was a member of
the church, and would not fight. However, several
Georgia gentlemen, who concurred in the propriety of
his remarks, called upon him, and urged him to accept
the challenge, if sent, and permit one of them to act
as his proxy in the business. But Ellsworth, doubt
less, was too good a Christian to assent to such an
arrangement. However, the fiict that it had been pro
posed came to the knowledge of Gunn, and from that
or some other cause he forbore to send the challentre.'
Ellsworth's colloquial talents were of a distinguished
order, and the delight of every social circle in which
he appeared. During the greater part of his service
in the Senate, society in Philadelphia was very much
divided, according to the party and political affinities
of its members. Hence, his associations were very
much, if not exclusively, confined to families whose
politics were the same as his own. The house of his
friend Wolcott was a pleasant resort to him. 'In his
parlor, of an evening,' says the late Hon. Joseph Hop
kinson, referring to Wolcott and the Federal society
of Philadelphia, ' you would meet more or less com
pany of that description. Leading members of the
Senate and House of Representatives, especially from
New England, were habitually there, and sometimes
at my house. When I mention such names as Ells
worth, Ames, Griswold, Goodrich, Tracy, &c,, you
may imagine what a rich and intellectual society it
' On the authority of Mr, Jos, Wood's MS, Memoir.

MEMBER OF U. S. SENATE. 181
was. I will not say that we have no such men now,
but I don't know where they are.' '
Ellsworth, when voting for the rejection of Rut
ledge, as he, doubtless, did, little anticipated that the
ermine would finally fall upon him. But, when Cush
ing, to whom the vacant post was assigned, declined
the too arduous honor, as he conceived it to be, it was
conferred upon Ellsworth. After much deliberation
and doubt he accepted the appointment, and resigned
his seat in the Senate. ' It is. Sir, my duty to acquaint
you,' thus he wrote the Governor of Connecticut,
' that I have, with some hesitation, accepted an ap
pointment 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.' ^
The Governor, in his reply, as well as in letters to
other friends, doubtless spoke the gratification and
approval of Connecticut at the promotion of her dis
tinguished son. ' Mr, Ellsworth's appointment,' he
says, in a letter to Jonathan Trumbull, ' will be very
satisfactory to all who are willing to be pleased. If
our country shall be preserved from anarchy and con
fusion, it must be from men of his character.' ^ ' The
established principles and abilities of Mr. Ellsworth,'
he writes his son, 'render his appointment proper.'*
' I doubt not but that the State,' thus he writes Ells-
' Federal Administrations, vol. i., pp. 162, 163.
^ Ellsworth to Oliver Wolcott, senior, March 8th, 1796. Federal
Administrations, vol. i., p. 306.
» March 14th, 1796, Ibid., p. 322,
" Oliver Wolcott, senior, to Oliver Wolcott, junior, March 21st, 1796.
Ibid.

182 LIFE OF OLIVER ELLSWORTH.
worth himself, 'would very reluctantly part with your
services under their immediate appointment, but upon
the conviction that they will be rendered more exten
sively useful by your discharging the duties of the
very important office to which you are appointed. . . .
Accept, Sir, my sincere wishes that your present ap
pointment may be as agreeable to yourself as, I doubt
not, it will be useful to your country.' '
However valuable an acquisition to the Judiciary
were the abilities and character of Ellsworth, Adams
seems to think that his services, in the actual state of
parties, were more needed in the Senate than on the
Bench. He says the Democratic societies had long
been laying their trains, ' to explode Washington, to
sacrifice Adams, and bring in Jefferson. . . . Wash
ington was aware of this, and prudently retreated.
But what had he done before he left the chair ? Ells-
' worth, firmest pillar of his whole Administration in
the Senate, he had promoted to the high office of Chief
Justice of the United States; King he had sent Am
bassador to London ; Strong was pleased to resign, as
well as Cabot; Hamilton had fled from his unpopu
larity to the Bar in New York; Ames to that in Bos
ton; and Murray was ordered by Washington to Hol
land. The utmost efforts of Ellsworth, King, and
Strong, in the Senate, had scarcely been sufficient to
hold the head of Washington's administration above
water during the whole of his eight years.' Adams
adds, that if, during his own Administration, Ells
worth, King, and Strong had been in the Senate, ' the
world would never have heard of the disgraceful cabals
and unconstitutional proceedings of that body.'^
' March 29th, 1796. Federal Administrations, vol. i., p. 324.
° Letter to James Lloyd, January, 1815. Adams's Works, vol. s.,

MEMBER OF U. S. SENATE. 183
Adams, as Vice-President, was a witness of Ells
worth's labors in the Senate during the whole period
of his service in that body. That he occupied the high
position he assigns him is confirmed by the testimony
of a political opponent, whose active spirit and subtle
intellect gave him, at one time, a commanding influ
ence in the politics of the country. We refer to Aaron
Burr, who was a member of the Senate during the lat
ter part of Ellsworth's connection with that body. Mr.
Goodrich, speaking of a private claim which was disal
lowed by the Senate says, ' Oliver Ellsworth, a man
of great pertinacity of character, as well as wisdom in
the conduct of affairs, had acquired immense influence
in that body ; it being said by Aaron Burr, that if he
should chance to spell the name of the Deity with two
ds, it would take the Senate three weeks to expunge
the superfluous letter ! He was generally opposed to
money grants, from a just anxiety as to the means of
the Government, and hence was called the " Cerberus
of the treasury." This formidable Senator opposed
the bill in Colonel Ely's favor, and it was, conse
quently, defeated.''
pp. 108-112. By ' the disgraceful cabals and unconstitutional pro
ceedings' of the Senate, Mr. Adams, doubtless, refers to the character
of the opposition that manifested itself, on the part of leading Federal
Senators, to some of his official acts, and especially to his re-election.
' Goodrich's Recollections, vol. i., p. 536.

184 LIFE or OLIVER ELLSWORTH.

CHAPTER XL
1796-1800.
CHIEF JUSTICE OF THE UNITED STATES.
Ellsworth, on the 4th of March, 1796, received the
appointment of Chief Justice of the United States. He
hesitated to accept this honorable position. He doubted
his fitness for the office. ' In the course of his practice
and judicial duties in Connecticut, at that time wholly
an agricultural State, he had little inducement or op
portunity to make himself familiar with the principles
of commercial law, and his acquaintance with foreign
and national jurisprudence was almost wholly confined
to those subjects which had fallen under his investiga
tion in the discharge of his Senatorial and other pub
lic duties. Besides, he had now, for several years,
been drawn aside, by political pursuits, from the prac
tice of his profession ; and no man who does not, in
some degree, judge from his own experience, can com
pletely realize how evanescent and fleeting are the im
pressions left upon the memory by all those branches
of professional knowledge which do not depend upon
general principles of reason, but, as must of necessity
be the case with regard to a considerable part of every
system of positive law, are either altogether arbitrary,
or founded upon technical reasoning, and analogy to a
series of precedents.

CHIEF JUSTICE OF UNITED STATES. 185
' Immediately upon his appointment, he commenced
a very extensive course of legal studies upon those
points in which he felt himself especially deficient, and
pursued it with unremitted application in every in
terval of public employment. It is probable, too, that
he had underrated his previous acquirements, for nei
ther the public, nor the Bar in any part of the Union,
remarked any deficiency in legal learning; nor did he
ever display, in any of his judicial opinions, that un-
wieldly show of citations and crude mass of reading in
which those to whom learning is not yet familiar are
so fond of indulging. Independently of that general
ability and business cast of character which fitted him
for almost every situation in which he might be placed,
he was remarkably well adapted for this office. If
there was any station for which he was peculiarly
formed by nature, it was that of a Judge. His habits
of patient and impartial investigation, his sound and
accurate judgment, and his quick perception, all con
spired to render him every way worthy of the station
which he filled ; and had his appointment been made
somewhat earlier in life, his mind more liberalized and
adorned in youth by general learning and elegant lite
rature, and in mature age more concentrated towards
the single object of legal science, he would, doubtless,
have ranked among the most accomplished and able
magistrates of any age or nation. Amid all the com
parative disadvantages under which he labored, although
a less splendid, he was probably not a less useful officer;
and if he threw little new light upon the great princi
ples of natural justice or commercial law, he most cer
tainly performed all the ordinary duties of his im
portant and laborious office, not merely with ability,
but with patience, diligence, and strict integrity. He
rose rapidly in public opinion, and the estimation of

186 LIFE OF OLIVER ELLSWORTH.
the Bar ; and in a period of violent party rancor, -the
purity and impartiality of his judicial character was
untarnished even by suspicion.' '
When Ellsworth received his appointment as Chief
Justice, the Supreme Court was sitting at Philadel
phia, and he presided during the remainder of the
term. There was much in his personal appearance
and bearing to grace the distinguished position he
occupied. He was tall, erect, and dignified ; his large
blue eyes, well set under heavy and highly intellec
tual brows, were firm and penetrating. His silk robe
and powdered hair, it is said, heightened his natural
advantages, and gave him, in the seat of justice, a dig
nity of demeanor which was felt by all who appeared
before him. And yet, withal, there was a character
istic plainness about him, a homeliness, that was un-
mistakeable. His manners were simple and unaffected.
He was patient, attentive, impartial, and laborious. In
learning, he was not inferior to his successor. Chief Jus
tice Marshall; in labor, he was, at least, his equal. 'His
patience and diligent attention, united to his quick
ness of apprehension, and the clearness of his percep
tions, contributed to great despatch of business and
soundness of decisions. His opinions at bar, as they
are preserved in the reports, are concise and per
spicuous. Seizing the leading points in the case, and
throwing aside all adventitious circumstances, he esta
blished the principle clearly and definitely, without
any ostentatious parade of legal research, or far-sought
ingenuity of argument.' ^
The dignity, courtesy, and ability of Chief Justice
Ellsworth secured to him, everywhere, the confidence
and esteem of the Bar. His simplicity, purity, and
' Analectic Magazine, vol. iii., pp. 393, 394. " Ibid., p. 402.

CHIEF JUSTICE OF UNITED STATES, 187
modesty compelled affection and respect. Yet his na
ture was resolute, and he knew what was due. to him
self, as well as what belonged to others. No one felt
inclined to brow-beat him, and if the attempt had been
made, no man would have vindicated his personal dig
nity, and the dignity of the Bench, with more spirit
and decision. The following anecdote may illustrate
this feature of his character. While holding a Circuit
Court at Philadelphia, with Judge Chase, who was
somewhat disappointed, it is said, at not obtaining the
place occupied by Judge Ellsworth,' a cause came on
for trial, in which Mr. Ingersoll was of counsel.
He began his argument, but had not proceeded far
before Judge Chase exclaimed, ' There is no dispute
about that, Mr. Ingersoll, the point is well settled, and
there is no need of arguing it.' Mr. Ingersoll then
stated his second point, but had scarcely begun to
enforce it, before he was again interrupted by Judge
Chase with, ' that is well settled, Mr. Ingersoll, you
need not spend time to argue it.' Mr. Ingersoll,
evidently vexed and disconcerted at these annoying
interruptions, nevertheless, proceeded to lay down his
third point, when he was, in like manner, again inter
rupted. Indignant at this treatment, he abandoned
his argument and took his seat. 'The Chief Justice
had now borne with his Associate as long as respect
for himself and the Court would allow ; and taking
out his snuff-box, and as his custom was, tapping it on
the side preparatory to abstracting a pinch, said to Mr.
Ingersoll, with an emphatic manner and meaning not
misunderstood by his Associate, ' The Court has ex-
' Judge Chase had been appointed an Associate Judge of the Su
preme Court on the 27th of January, 1796, a few weeks previous to
Ellsworth's appointment.

188 LIFE OF OLIVER ELLSWORTH.
pressed no opinion. Sir, upon these points, and when
it does, you will hear it from the proper organ of the
Court. You will proceed. Sir, and I pledge you my
word you shall not be interrupted again;' then turned
his face towards Judge Chase with a withering look of
rebuke, under which the judge, with all his nerve and
daring, fairly quailed.' '
In March, the first term of the Supreme Court, at
which Ellsworth presided, adjourned; and immediately
after, he sailed for Savannah, to hold there a term of
the Circuit Court. The Duke de Liancourt was a pas
senger on board the same ship. ' One of my fellow-
passengers,' says the Duke, ' was Mr. Ellsworth, of
Connecticut, recently appointed Chief Justice of the
United States. All the Americans who were with us,
and they were almost all young people, showed him
no more regard than if he had been one of the negroes;
though he be, next after the President, the first person
in the United States, or perhaps, indeed, the very first.
Disrespect to their seniors, and to persons in public
office, seems to be strongly affected among the Ameri
cans; such, at least, is the humor of the rude and ill-
bred among them.'^
Accustomed to the ceremonial of courts, and the
supreme deference with which official persons were
treated under the old regime in France, the Duke de
Liancourt was, naturally enough, perhaps, shocked
that the Chief Justice of the United States should
meet with no more consideration than any private
gentleman. But we may be sure that, to the Chief
Justice himself, any other style of treatment would
' On the authority of Mr. Uriah Tracy, Senator, at that time, from
Connecticut. MS. by Mr. Jos. Wood.
'^ The Duke de Liancourt's Travels, vol. i., p. 553.

CHIEF JUSTICE OF UNITED STATES, 189
have been as distasteful as it might have been agree
able and pleasing to the French Peer,
Ellsworth's charges to grand juries were, in many
respects, admirable for matter and manner. They
were brief, pointed, and perspicuous. The following is
his address to the Grand Jury at Savannah, delivered
on the 25th of April, 1796 : —
'Gentlemen of the Grand Jury. This Court has
cognizance of all offences against the United States
committed within the District of Georgia, or elsewhere,
without the jurisdiction of any particular State, by
persons afterwards found within this District. After
all such offences you will, therefore, enquire and due
presentment make. Your duty may, perhaps, be un
pleasant ; but it is too important not to be faithfully
performed. To provide in the organization that rea
son shall prescribe laws, is of little avail, if passions
are left to control them. Institutions without respect,
laws violated with impunity, are, to a Republic, the
symptoms and seeds of death. No transgression is too
small, nor any transgression too great, for animadver
sion. Happily for our laws, they are not written in
blood, that we should blush to read them, or hesitate
to execute them. They breathe the spirit of a parent,
and expect the benefits of correction, not from seve
rity, but from certainty. Reformation is never lost
sight of, till depravity becomes, or is presumed to be,
incorrigible. Imposed, as restraints here are, not by
the jealousy of usurpation, nor the capriciousness of
insensibility; but as aids to virtue, and guards to
right, they have a high claim to be rendered efficient.
' Nor is this claim more heightened by the purity
of their source, and the mildness of their genius, than
by the magnitude of the interests they embrace. The

190 LIFE OF OLIVER ELLSWORTH.
national laws are the national ligatures and vehicles
of life. Though they pervade a country as diversified
in habits, as it is vast in extent, yet they give to the
whole harmony of interest and unity of design. They
are the means by which it pleases Heaven to make,
of weak and discordant parts, one great people, and to
bestow upon them unexampled prosperity. And, so
long as America sball continue to have one will
organically expressed and enforced, must she continue
to rise in opulence and respect.
'Let the man, or combination of men, who, from
whatever motive, oppose partial to general will, and
would disjoint their country to the sport of fortune,
feel their impotence and error. Admonished by the
fate of Republics which have gone before us, we should
profit by their mistakes. Impetuosity in legislation,
and instability in execution, are the rocks on which
they perished. Against the former, indeed, we hold a
security which they were ignorant of, by a represen
tation instead of the aggregate, and by a distribution
of the legislative power to maturing and balancing
bodies, instead of the subjection of it to momentary
impulse, and the predominance of faction. Yet, from
the danger of inexecution we are not exempt. Strength
of virtue is not, alone, sufficient; there must be
strength of arm, or the experiment is hopeless. Nu
merous are the vices, and as obstinate the prejudices,
and as daring as restless is the ambition, which perpe
tually hazard the national peace. And they certainly
require that, to the authority vested in the Executive
Department, there be added liberal confidence, and the
unceasing co-operation of all good citizens for its sup
port. Let, then, there be vigilance — constant vigi
lance and fidelity for the execution of laws — of laws
made by all, and having for their object the good of

CHIEF JUSTICE OF UNITED STATES. 191
all. So let us rear an empire sacred to the rights of
man; and commend a government of reason to the
nations of the earth.' '
The alien and sedition acts, which caused such an
outcry at the time, and still furnish the substratum or
adornment of many an excited political harangue,
were . deemed by Ellsworth, in the actual circum
stances of the country, apparently on the eve of a war
with France, as eminently^^reper-measures.^ Besides,
he was of opinion that the sedition act was an ame
lioration of the common law, and did not create a new
offence. The following charge was delivered to a
grand jury, at a time when the spirit of resentment
and opposition to these two celebrated enactments
was at its height : —
'Gentlemen of the Grand Jury. Placed as the
guardians of the laws, you have in trust the Govern
ment itself — a government, let me remark, entitled
to affection, as well as support — a government legiti
mate in its origin, free in its principles, and tested by
effects, eminently beneficent. If we look upon it as it
is, the palladium of American liberty, and ground of
national hope, our solicitude for its preservation will
increase with the dangers to which it is exposed. The
fondness for novelty, and extravagant anticipation of
good, which aided the Government at its outset, must,
from an eight years' experiment of what any govern
ment on earth would realize, have given way to dis
gust, and the project of some new theory.
' MSS.
^ There were, at the time of the passage of these acts, about 30,000
Frenchmen in the United States, as well as other foreigners, who
ardently sympathized with them.

192 LIFE OF OLIVER ELLSWORTH,
' Less to have been expected is the baneful influence
of those elements of disorganization, and tenets of im
piety, which have been propagated with a zeal that
would have done honor to a better cause. , . . It is
manifest that, unhinged and imperious, the mind revolts
at every institution which can preserve order, or pro
tect right, while the heart, demoralized, becomes in
sensible to social and civil obligations. So radically
hostile to free government are the impassioned and
impious. It is further observable that evils which
annoy us, by a disingenuous ascription to causes that
have no agency in producing them, are made exten
sively the means of seduction. With concern I add,
that, whatever disaffection has sprung from these
sources, or the common incidents of government, or
from untowardness of temper, or spirit of party, has
not failed to cherish, to ripen, and to marshal, a spirit,
alas ! which our circumspection has been incompetent
to prevent, and which mischief seems incompetent to
satisfy. While it estranges honest men, poisons the
sources of public confidence, and palsies the hand of
administration, it opens a door to foreign influence,
that destroying angel of republics.
' If, from the indications within, we derive an argu
ment for vigilance and firmness in the execution of
laws, how much is it strengthened by the convulsive
aspect of exterior affairs? Whether allured by ca
resses, or impelled by violence, the object is still to
separate the people from the Government. Yes, the
avowed object is to separate the people from the
Government, and, of course, to prepare them, by
sedition and rebellion, for a new order of things.
We. trust in God that foreign government is not
to prevail here! but without prompt support and

CHIEF JUSTICE OF UNITED STATES. 193
energy given to our own, our trust is mere presump
tion." . . .
In a letter to Timothy Pickering, then Secretary
of State, the Chief Justice thus explains his opinions
respecting the sedition act ; the most unpopular act,
perhaps, with which the history of the Federal party
is associated : —
' I thank you,' he saye, ' for sending me the charge
of that pains-taking Judge Addison,^ who seems to be
a light shining in darkness, though the darkness com
prehends him not. He is doubtless, correct in sup
posing that the sedition act does not create an offence.
but rather, by permitting the truth of a libel to be
given in justification, causes that, in some cases, not
to be an offence which was one before. Nor does it
devise a new mode of punishment, but restricts the
power which previously existed to fine and imprison.
But, as to the constitutional difficulty, who will say.
negating the right to publish slander and sedition is
" abridging the freedom of speech or of the press," of a
right which ever belonged to it? or will show us how
Congress, if prohibited to authorize punishment for
speaking in any case, could authorize it for perjury ?
of which nobody has yet doubted. If a repeal of the
act is to take place this season, I think the preamble,
in order to prevent misapprehension, and withal to
make a little saving for our friend Marshall's address,
should read thus : — " Whereas, the increasing danger
and depravity of the present time require that the
law against seditous practices should he restored to its
former rigor, therefore, &c." I congratulate you on
' MSS. ' Of Pennsylvania,
Vol, IL — 13

194 LIFE OF OLIVER ELLSWORTH.
the late success of the British ; not that they had not
power enough before, but because the French had too
much; and, besides, if the latter had obtained the vic
tory, they would not have thanked God for it.' '
We have given the reader an opportunity to judge
of the style and character of Chief Justice Ellsworth's
charges to grand juries. "^ We may now add, that, as
presiding judge on the Circuit, he gained great ap
plause. He had a ready facility in the despatch of
business, and in all parts of the country was respected
for his able and impartial discharge of his duties.
Williams's case is the only one where the judgment of
the Chief Justice was subjected to the crucible of
violent criticism, and angry denunciation. And, even
in this instance, the purity and integrity of the judge
escaped all imputation ; it was only the political con
sequences of the doctrine that he enunciated which
excited animadversion. But the doctrine itself, so far
as judicial opinion and exposition are concerned, is to
day the law of the United States. Considered, how
ever, on the broad ground of natural right, and pohti-
cal expediency, it may well be doubted whether, in
its full extent, it can be sustained. Certainly, our
Government, thus far, has shown no disposition to be
governed by it. The doctrine laid down by Ellsworth
in the Williams' case was, that there is no right of
expatriation ; and, consequently, that allegiance is not
dissoluble by the act of the citizen alone,
Williams, an American by birth, was indicted for
accepting a commission from France, and committing
hostilities against the British, contrary to the treaty
between Great Britain and the United States, He did
' MS. Letter, December 12th, 1798,

CHIEF JUSTICE OF UNITED STATES, 195
not deny the acts charged agaiast him, but put his
defence on the ground that he was no longer a citizen
of the United States, that he was a naturalized citizen
of France, where he had resided since 1792, with the
exception of a five months' absence, and hence had a
right to engage in the service of his adopted country.
Evidence to this effect, Ellsworth regarded as wholly
irrelevant and inoperative. .He thus stated his
opinion : —
'The common law of this country,' said he, 're
mains the same as it was before the Revolution. The
present question is to be decided by two great princi
ples; one is, that all the members of a civil community
are bound to each other by-eompact; the other is, that
one of the parties to this compact cannot dissolve it by
his own act. The compact between our community
and its members is, that the community will protect
its members ; and on the part of the members, that
they will at all times be obedient to the laws of the
community, and faithful in its defence. This compact
distinguishes our Government from those which are
founded in violence or fraud. It necessarily results,
that the members cannot dissolve this compact, with
out the consent or default of the community. There
has been here no consent ; no default. Default is not
pretended. Express consent is not claimed; but it
has been argued, that the consent of the community is
implied by its policy, its condition, and its acts.
' In countries so crowded with inhabitants that the
means of subsistence are difficult to be obtained, it is
reason and policy to permit emigration. But our
policy is different; for our country is but sparsely set
tled, and we have no inhabitants to spare. Consent
has been argued from the condition of the country ;

196 LIFE OF OLIVER ELLSWORTH.
because we were in a state of peace. But, though we
were in peace, the war had commenced in Europe.
We wished to have nothing to do with the war; but
the war would have something to do with us. It
has been extremely difficult for us to keep out of this
war; the progress of it has threatened to involve us.
It has been necessary for our Government to be vigi
lant in restraining our own citizens from those acts
which would involve us in hostilities. The most
visionary writers on this subject do not contend for
the principle in the unlimited extent, that a citizen
may, at any and at all times, renounce his own, and
join himself to a foreign country.
'Consent has been argued from the acts of our
Government, permitting the naturalization of foreign
ers. When a foreigner presents himself here, and
proves himself to be of a good moral character, well
affected to the Constitution and. Government of the
United States, and a friend to the good order and hap
piness of civil society ; if he has resided here the time
prescribed by law, we grant him the privilege of a citi
zen. 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 leave him to
judge of that. If he embarrasses himself by contract
ing contradictory obligations, the fault and the folly
are his own. But this implies no consent of the Gov
ernment, that our own citizens should expatriate them
selves. Therefore, it is my opinion that these facts,
which the prisoner offers to prove in his defence, are
totally irrelevant,' &c.
With this opinion of the Chief Justice to guide them,
the jury found no difficulty in bringing in a verdict
of guilty. Williams was then sentenced to four months'

CHIEF JUSTICE OF UNITED STATES. 197
imprisonment, and to pay a fine of a thousand dollars.
He was, however, subsequently pardoned, and his fine
remitted. The opinions of Chief Justice Ellsworth, while on
the Bench of the Supreme Court, and reported by Dal
las, are not of a character to interest the general
reader; but, as showing his manner of discussing
legal questions, we shall cite one or two of them at
length. Meanwhile, we may observe that the following
opinion, delivered at a Circuit Court in North Caro
lina, is, probably, the most elaborate decision of the
Chief Justice that has been preserved. We are not
aware that it has ever been printed. The question
involved was of the same character as in the case of
Ware v. Hylton,' which we have noticed in the lives
of Cushing and Marshall ; but with this difference,
that in the former the debt was absolutely confiscated,
while in the latter it was only sequestered. The
whole subject, as will be seen, is discussed with great
vigor and clearness : —
' It is admitted,' said the Chief Justice, ' that the
bond on which this action is brought was executed by
the defendant to the plaintiffs, and that the plaintiffs
have not been paid. But the defendant pleads that,
since the execution of the bond, a war has existed in
which the plaintiffs were enemies ; and that, during
that war, this debt was confiscated, and the money
paid into the Treasury of the State. And the plain
tiffs reply that, by the treaty which terminated the
war, it was stipulated " that creditors on either side
should meet with no lawful impediments in the way

' Dallas' Reports, vol. iii., p. 199.

198 LIFE OF OLIVER ELLSWORTH.
of the recovery of hona fide debts heretofore con
tracted," ' Debts contracted to an alien are not extinguished
by the intervention of a war with his nation. His
remedy is suspended while the war lasts ; because it
would be dangerous to admit him into the country, or
to correspond with agents in it, and also because a
transfer of treasure from the country to his nation
would diminish the ability of the former, and increase
that of the latter, to prosecute the war. But with the
termination of hostilities, these reasons and the sus
pension of the remedy cease.
'As to the confiscation here alleged, it is, doubtless,
[true] that enemy debts, so far as consists in barring
the creditors, and compelling payment from the
debtors for the use of the public, can be confiscated ;
and that, on principles of equity, though, perhaps, not
of policy, they may be ; for their confiscation, as well
as that of property of any kind, may serve as an in
demnity for the expenses of war, and as a security
against future aggressions. That such confiscations
have fallen into disuse, not from the duty which
one nation, independent of treaties, owes to another,
but from a commercial policy which European na
tions have found a common, and, indeed, strong in
terest in supporting. Civil war which terminates in
a severance of empire does, perhaps less than any
other, justify the confiscation of debts, because of the
special relation and confidence subsisting at the time
they were contracted. And it may have been owing
to this consideration, as well as others, that the Ame
rican States, in the late Revolution, so generally for
bore to confiscate the debts of British subjects. In
Virginia, they were only sequestered. In South Caro
lina, all debts, to whomsoever due, were excepted from

CHIEF JUSTICE OF UNITED STATES. 199
confiscation ; as well, in Georgia, of British merchants
and others residing in Great Britain.' And in the
other States, except this, I do not recollect that
British debts were touched. Certain, it is, that the
recommendation of Congress on the subject of confisr
cation did not extend to them. North Carolina, how
ever, judging for herself in a moment of severe pres
sure, exercised the sovereign power of passing a confis
cation act, which extends, among others, to the debts
of the plaintiffs: providing, however, at the same time,
as to all debts which should be paid into the treasury
under that act, that the State w^ould indemnify the
debtors, should they be obliged to pay again.
'Allowing, then, that the debt in question was, in
fact, and of right confiscated, can the plaintiffs recover
by the treaty of 1783?
' The fourth article of that treaty is in the following
words : — "It is agreed that creditors on either side
shall meet with no lawful impediment to a recovery
of the full value, in sterling money, of all bona fide
debts heretofore contracted." There is no doubt but
the debt in question was a bona fide debt, and, there
fore, contracted; i. e., prior to the treaty. To bring
it within the article, it is also requisite that the
debtor and creditor should have been on different sides
wdth reference to the parties to the treaty. And as
the defendant was confessedly a citizen of the United
States, it must appear that the plaintiffs were subjects
of the King of Great Britain. And it is pretty clear,
from the pleadings and the laws of the State, that
they were so. It is true that, on the 4th of July,
1776, when North Carolina became an independent
' Georgia suspended, but did not confiscate; and in the case of
Georgia v. Brailsford, it was held that the creditors could recover.
Vide vol. i., p. 392, et seq.

200 LIFE OF OLIVER ELLSWORTH.
State, they were inhabitants thereof, though natives
of Great Britain, and might have been claimed and
holden as citizens, whatever were their sentiments or
inclinations. But the State afterwards, in 1777, lib6-'
rally gave to them, and others similarly circumstanced,
the option of taking an oath of allegiance, or of depart^
ing the State under a prohibition eVer to return; with
the indulgence of a time to settle their estates, and
remove their effects. They chose the latter, and ever
after adhered to the King of Great Britain, and must,
therefore, be regarded as on the British side.
'It is also pertinent to the inquiry, whether the
debt in question be within the before recited article,
to notice the objection stated by the defendant's coun
sel, viz., that, at the date of the treaty, what is now
sued for as a debt was not a debt, but a nonentity;
payment having been made, and a discharge effected,
under the act of confiscation, and, therefore, that the
stipulation concerning debts did not reach it.
' In the first place, it is not strictly true that in this
case there was no debt at the date of the treaty. A
debt is created by contract, and exists till the contract
is performed. Legislative interference to exonerate a
debtor from the performance of his contract, whether
upon or without conditions, or to take from the credi
tor the protection Of law, does not in strictness destroy
the debt, thought it may the local remedy for it. The
debt remains, and, in a foreign country, payment is
frequently enforced.
' Secondly. It was manifestly the design of the stipu
lation that where debts had been, heretofore, con
tracted, there should be no bar to their recovery from
the operation of laws passed subsequent to the con
tracts. To adopt a narrower construction of the arti-

CHIEF JUSTICE OF UNITED STATES. 201
cle would be to leave creditors to a harder fate than
they have been left to by any modern treaty.
' Upon a view, then, of all the circumstances of the
case, it must be considered as one within the stipula
tion, that there should be " no legal impediment to a
recovery;" and it is not to be doubted that impedi
ments created by the act of confiscation are "legal"
impediments. They must, therefore, be disregarded
if the treaty is a rule of decision. Whether it is so, or
not, remains to be considered.
' Here, it is contended by the counsel for the defen
dant, that the confiscation act has not been repealed
by the State; that the treaty could not repeal or
annul it ; and, therefore, that it remains in force, and
secures the defendant ; and further, that a repeal of it
could not take from him a right vested, to stand dis
charged. 'As to the opinion that a treaty does not annul a
statute, so far as there is an interference, it is un
sound. A statute is a declaration of the public will,
and of high authority; but it is controllable by the
public will subsequently declared ; hence the maxim,
that, when two statutes are opposed to each other, the
latter abrogates the former. Nor is it material, as to
the effect of the public will, what organ it is declared
by, provided it be an organ constitutionally authorized
to make the declaration. A treaty, when it is in fact
made, is, with regard to each nation that is a party to
it, a national act ; an expression of the national will,
as much so as a statute can be : and does, therefore,
of necessity annul any prior statute, so far as there is
an interference. The supposition that the public can
have two wills, at the same time, repugnant to each
other — one expressed by a statute and another by a
treaty — is absurd.

202 LIFE OF OLIVER ELLSWORTH.
' The treaty now under consideration was made, on
the part of the United States, by a Congress composed
of Deputies from each State, to whom was delegated,
by the Articles of Confederation expressly, " the sole
and exclusive right and power of entering into treaties
and alliances;" and laws ratified or made by them
became a complete national act, and the act and law
of every State. If, however, a subsequent sanction of
this State were necessary to make it a law here, it has
been had and repeated,'
He refers to the act of 1787, declaring the treaty a
law in the State, and to the adoption of the Constitu
tion of the United States in 1789, which declares, that
all treaties which had been or might be made under
the authority of the United States, should be the
supreme law of the land; and thus proceeds : 'Surely,
then, the treaty is now law in this State; and the
confiscation act, so far as the treaty interferes with it,
is annulled.
' With regard to the remaining suggestion, that an
nulling the confiscation act will not annul the defen
dant's right of discharge acquired while the act was in
force, it is true, the repeal of the law does not destroy
what has been well done under it. But, admitting the
right claimed by the defendant to be as substantial as
a right of property can be, yet he may be deprived of
it if the treaty so requires. It is justifiable, and fre
quent in the adjustment of national differences, to con
cede, for the safety of the State, rights of individuals;
and they are afterwards indemnified, or not, according
to circumstances. What is more material to be here
noted is, that the right or obstacle in question, what
ever it may amount to, has been created by law, and
not by the creditor, and comes, therefore, within the

CHIEF JUSTICE OF UNITED STATES. 203
description of legal impediments; all of which, in this
case, the treaty, I apprehend, removes. Let judgment
be for the plaintiffs.''
In the case of Wiscart v. Dauchy,^ the question <
arose, how the appellate jurisdiction of the Supreme ,
Court was to be exercised, whether by appeal or writ i
of error. The Court held that the Constitution and
act of Congress contemplated the latter mode alone.
Ellsworth, Ghief Justice. . . . 'The Constitution, dis
tributing the judicial power of the United States, vests
in the Supreme Court an original, as well as an appel
late jurisdiction. The original jurisdiction, however,
is confined to cases affecting Ambassadors, other pub
lic Ministers, and Consuls, and those in which a State
shall be a party. In all other cases, only an appellate
jurisdiction is given to the Court; and even the appel
late jurisdiction is likewise qualified, inasmuch as it is
given, " with such exceptions, and under such regula
tions, as the Congress shall make." Here, then, is the
ground, and the only ground, on which we can sustain
an appeal. If Congress has provided no rule to regu
late our proceedings, we cannot exercise an appellate
jurisdiction; and if the rule is provided, we cannot
depart from it. The question, therefore, on the con
stitutional point of an appellate jurisdiction is, simply,
whether Congress has established any rule for regu
lating its exercise?
'It is to be considered, then, that the judicial statute
of the United States speaks of -an appeal and of a writ
of error ; but it does not confound the terms, nor use
' MSS. The names of the parties in this case are not known
to me.
2 Dallas' Reports, vol. iii., p. 321.

204 LIFE OF OLIVER ELLSWORTH.
them promiscuously. They are to be understood, when
used, according to their ordinary acceptation, unless
something appears in the act itself to control, modify,;
or change the fixed and technical sense which they
have previously borne. An -appeal-is a process of civil
law origin, and removes a cause entirely, subjecting
the fact, as well as the law, to a r.e*iew^nd-¥e-tf4al;
but a writ of error is a process of common law origin,
and it removes nothing for a re-examination but the
law. Does the statute observe this obvious distinc
tion? I think it does. In the twenty-first section
there is a provision for allowing an appeal in Admi
ralty and maritime causes from the District to the
Circuit Court; but it is declared that the matter in
dispute must exceed the value of three hundred dol
lars, or no appeal can be sustained; and yet, in the
preceding section, we find that decrees and judgments
in civil actions may be removed, by writ of error, from
the District to the Circuit Court, though the value of
the matter in dispute barely exceeds fifty dollars. It is
unnecessary, however, to make any remark on this
apparent diversity. The only question is, whether the
civil actions here spoken of include causes of Admi
ralty and maritime jurisdiction ? Now, the term civil
actions would, from its natural import, embrace every
species of suit which is not of a criminal kind ; and,
when it is considered that the District Court has a
a criminal as well as a civil jurisdiction, it is clear,
that the term was used by the Legislature, not to dis
tinguish between Admiralty causes, and other civil
actions, but to exclude the idea of removing judg
ments in criminal prosecutions from an inferior to a
superior tribunal. Besides, the language of the first
member of the twenty-second section seems calculated
to obviate every doubt. It is there said, that final

CHIEF JUSTICE OF UNITED STATES. 205
decrees and judgments in civil actions in a District
Court may be removed into the Circuit Court upon a
writ of error ; and since there cannot be a decree in
the District Court in any case, except cases of Admi
ralty and maritime jurisdiction, it follows, of course,
that such cases must be intended, and that, if they
are removed at all, it can only be done by writ of
error. ' In this way, therefore, the appellate jurisdiction of
the Circuit Court is to be exercised ; but it remains to
inquire, whether any provision is made for the exer
cise of the appellate jurisdiction of the Supreme Court;
and I think there is, by unequivocal words of reference.
Thus, the twenty-second section of the act declares,
that " upon a like process," that is, upon a writ of
error, final judgments and decrees in civil actions (a
description still employed in contradistinction to crimi
nal prosecutions) and suits in equity in the Circuit
Court, may here be re-examined, and reversed or
affirmed. Among the causes liable to be thus brought
hither upon a writ of error, are such as had been pre
viously removed into the Circuit Court, "by appeal
from a District Court," which can only be causes of
Admiralty and maritime jurisdiction. . . .
' The law may, indeed, be improper and inconve
nient; 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. If, however, the
construction, that a statement of facts by the Circuit
Court is conclusive, would amount to a denial of jus
tice, would be oppressively injurious to individuals, or
would be productive of any general mischief, I should,
then, be disposed to resort to any other rational expo
sition of the law which would not Be attended with
these deprecated consequences. But, surely, it cannot

206 LIFE OF OLIVER ELLSWORTH.
be deemed a denial of justice, that a man shall not be
permitted to try his cause two or three times over. If
he has one opportunity for the trial of all the parts of
his case, justice is satisfied; and even if the decision
of the Circuit Court had been made final, no denial of
justice could be imputed to our Government ; much
less can the imputation be fairly made, because the-
law directs that, in cases of appeal, part shall be de
cided by one tribunal, and part by another ; the facts
by the Court below, and the law by this Court. Such
distribution of jurisdiction has long been established in
England.' '
In the case of Wilson v. Daniel,^ which was error
from the Circuit Court of Virginia, two questions were
presented for the consideration of the Court. They
are thus stated and answered : —
Ellsworth, Ghief Justice. ' There have been two
exceptions taken to the record in the present case.
First. That the judgment of the inferior Court is so
defective, that a writ of error will not lie upon it. It
is evident, however, that the judgment is not merely
interlocutory ; but is in its nature final, and goes to
the whole merits of the case. Though imperfect and
informal, it is a judgment on which an execution could
issue; and as the defendant below might be thus in
jured by it, we are unanimously of opinion, that he is
entitled to a writ of error. The second exception is,
that the judgment is not for a sum of sufficient magni
tude to give jurisdiction to this Court. On this excep
tion there exists a diversity of sentiment; but it is
' The act of CongKess of March 3d, 1803, provided for an appeal
instead of a writ of error.
^ Dallas' Reports, vol. iii., p. 401.

CHIEF JUSTICE OF UNITED STATES. 207
the prevailing opinion, that we are not to regard the
verdict, or judgment, as the rule for ascertaining the
value of the matter in dispute between the parties. By
the judicial statute, it is provided that certain deci
sions of the Circuit Court, in certain cases, may be
reversed on a writ of error in the. Supreme Court; but
it is declared that the matter in dispute must exceed
the sum or value of two thousand dollars. To ascer
tain, then, the matter in dispute, we must recur to the
foundation of the original controversy — to the matter
in dispute when the action was instituted. The de
scriptive words of the law point emphatically to this
criterion ; and in common understanding the thing
demanded (as in the present instance the penalty of a
bond), and not the thing found, constitutes the matter
in dispute between the parties,
' The construction which is thus given not only
comports with every word in the law, but enables us
to avoid an inconvenience, which would otherwise
affect the impartial administration of justice. For, if
the sum or value, found by a verdict, was considered
as the rule to ascertain the magnitude of the matter
in dispute, then, whenever less than two thousand dol
lars was found, a defendant could have no relief against
the most erroneous and injurious judgment, though the
plaintiff would have a right to a removal and revision
of the cause, his demand, which is alone to govern him,
being more than two thousand dollars. It is not to
be presumed that the Legislature intended to give any
party such an advantage over his antagonist; and it
ought to be avoided, as it may be avoided, by the fair
and reasonable interpretation which has been pro
nounced.' If the reader is anxious to trace the Chief Justice

208 LIFE OF OLIVER ELLSWORTH.
through the reports, he can examine the case of La
Vengeance ; The ship Phoebe Ann ; Brown v. Barry ;
Wilson V. Daniel ; Clark v. Russell ; Sims v. Irvine ;
and Turner v. The Bank of North America.' He will,
however, find but little in the character of the ques
tions discussed in these cases to interest him, and will
be likely to carry away from the examination but a
small addition to his stock of legal knowledge. We
have, however, in the course of the present chapter,
endeavored to give him an opportunity to form an
opinion as to Ellsworth's judicial abilities. It only
remains to add, that he continued on the Bench as
Chief Justice until the latter part of the year 1800,
when he resigned his commission. He had, however,
as we shall see in the next chapter, been absent in
Europe during the previous year, engaged in the nego
tiation of a treaty with France, Part of the occur
rences that finally resulted in his appointment as
Envoy to Paris, took place while he was Chief Jus
tice, and excited in him, as in the friends of the Govern
ment and the Administration generally, both anxiety
and indignation. We have thought, however, that it
would be more convenient to the reader to relate, with
all practicable brevity, the history of our troubles with
France, and Ellsworth's connection with it, in a sepa
rate chapter.
Meanwhile, we may observe, that Ellsworth, ac
tive, ardent, and vehement as he had been in the
politics of his time, was singularly exempted from that
rancor, that bitterness of attack which pursued, with
more or less persistency, all the leading public charac
ters of that period, and especially the leading charac-
' Dallas' Reports, vol. iii., pp. 297, 319, 365, 401, 415, 425;
Ibid., vol. iv., p. 8.

CHIEF JUSTICE OF UNITED STATES. 209
ters of his own party. The integrity of his motives, '
his candor and sincerity, seem never to have been
questioned. If thus spared by political opponents, we
may well suppose that to his friends he was an object
of unqualified respect and affection. Thus was he
regarded by Washington, of whose Administration he
was such an efficient supporter. Whether they enjoyed
the confidence and esteepa of that distinguished person
has become, in our day, a sort of test by which the
public characters of the Revolution are more or less
tried. This, we venture to say, is not altogether a just
mode of decision. Washington was not infallible. His
justice, his integrity, his calm, cautious judgment, his
moderation in every variety of situation, and his un
doubted patriotism, are qualities universally and justly
accorded him. But he was not exempt from failings ;
in other w^ords, he was human. He was liable to be
deceived, and was deceived, by artful men whose pro
fessions of attachment were calculated to lull distrust,
and open the way to his confidence. Hence, it has
occurred, that men whose patriotism was questionable,
whose services were of no very great importance, and
whose talents — talents chiefly for dexterity and in
trigue, were employed for their own personal aggran
dizement, have, by the parade of their intercourse with
Washington, been held up to the view of posterity as
patriots, and heroes of unimpeachable worth.
That Ellsworth was one of the men upon whom
Washington relied ; that he was among the most vig
orous and influential supporters of his Administration;
that he could not fail to be respected for the tone and
firmness of his principles, is all very true. But Ells
worth was a man whose virtue carried with it its own
attestation, and required no endorsement, no letter of
commendation, to insure its acknowledgment. It is
Vol. IL — 14

210 life of OLIVER ELLSWORTH.
not, therefore, as a sort of witness to character that we
lay before the reader the following letter; but as show
ing the intimate friendship that existed between these
distinguished persons : —
' Dear Sir : — Before I leave this city, which will be
within less than twenty-four hours,' thus did Wash
ington write Ellsworth when he had ceased to be Pre-
sident, ' permit me, in acknowledging the receipt of
your kind and affectionate note of the 6th, to offer you
the thanks of a grateful heart for the sentiments you
have expressed in my favor, and for those attentions
with which you have always honored me. In return,
I pray you to accept all my good wishes for the per
fect restoration of your health, and for all the happi
ness this life can afford. As your official duty will
necessarily call you to the southward, I will take the
liberty of adding, that it will always give me pleasure
to see you at Mount Vernon as you pass and repass.
' With unfeigned esteem and regard, in which Mrs.
Washington joins me, I am always and affectionately
yours,
'George Washington."
' MS. Letter, dated March 8th, 1797, four days after the expira
tion of his term of office.

ENVOY EXTRAORDINARY TO FRANCE. 211

CHAPTER XII.
1799-1800.
ENVOY EXTRAORDINARY TO FRANCE,
The outbreak of the French Revolution, as we have
before remarked, was hailed in this country with un
affected joy and enthusiasm. To this country the
French patriots, as they were styled, naturally turned
for sympathy and gratulation, and at a later moment
for active assistance and material aid. But, when the
Administration of Washington, on a comprehensive
survey of the condition of the United States, and the
complicated affairs of Europe, determined on neutrality,
as the policy dictated by wisdom, by an enlightened
view of our interests, it produced an exasperation of
feeling at Paris, that might have resulted in an imme
diate declaration of war, had it not been known that
the line of conduct adopted by the Administration was
disapproved and denounced by the Opposition, which
was numerous and increasing. Indeed, the opinion
was firmly held that, on this question of neutrality,
the Administration were unsupported by the American
people. Genet's extraordinary conduct, in issuing com
missions, and giving orders for fitting out and arming
privateers, was owing, in great measure, to this un
doubted persuasion.
But, if war was not actually declared, in every

212 LIFE OF OLIVER ELLSWORTH.
respect, short of that, our country was treated with
the greatest insolence by our former ally. Our com
merce was harassed in every quarter, and in every
article; our seamen often abused, generally impri
soned, and treated in other respects like enemies.'
But these outrages affected very differently the sup
porters of the Administration and their opponents.
The latter charged, that little else could be expected
from the line of conduct pursued by the Administra
tion ; by its alleged sympathy with Great Britain, and
disregard of the obligations this country owed to
France. If war was to be declared at all, it was said,
it should be against Great Britain, which had been the
greatest offender.
When, therefore, peace, ' amity, commerce, and navi
gation,' were secured with that Government, in conse
quence of the Jay treaty, the utmost exasperation was
manifested on the part of France, and found a ready
sympathy in this country. It was not so much that
the treaty had objectionable features, as that any
treaty should be made at all. In October, 1796, the
French Government issued an arr^t, directing the
seizure of British property on board of American ves
sels, and provisions bound for England. This was in
violation of the treaty of 1778; but that they affected
to regard as having ceased the moment the Jay treaty
was ratified. By successive orders, the commerce of
the United States was made the lawful prey of French
cruisers; the necessities of -the French treasury, and
the unfriendly disposition of the American authorities,
being the motives, and, indeed, the pretexts for this
wholesale robbery and plunder.
' Mr. Monroe's description of the state of things, in July, 1794, at
the time of his arrival in France, and just after the execution of
Robespierre.

ENVOY EXTRAORDINARY TO FRANCE. 213
The recall of Monroe was construed as another
evidence of the unfriendly sentiments of our Govern
ment, and another ground of justification of the robber
policy of France. This gentleman was recalled upon
what subsequently seemed, from his explanations, a
misapprehension of his real conduct. It was thought,
and for strong apparent reasons, that he had omitted
to explain the views and course of the United States,
although furnished with all requisite documents for
that purpose ; but, according to his statements, when
specific objections to the conduct of his Government
were urged, he did employ the arguments for its vindi
cation with which he had been charged. These objec
tions, however, it so happened, were not stated until a
very late moment ; thus giving the Administration at
home ground of suspicion that neglect, or some more
reprehensible cause, had kept their Ambassador in a
state of passivity. But this exculpation of Mr. Mon
roe, in the light of more recent revelations, is hardly
satisfactory. M. Thiers, in his history of the French
Revolution, declares that Monroe urged the Directory
to submit to the wrongs inflicted by President Wash
ington, in order to leave him without excuse, to en
lighten the Americans, and effect a different choice at
the next election. If this be so, if the sources of M.
Thiers' information are authentic, in what a melan
choly light is the conduct of Monroe exhibited. In
stead of being the independent representative of his
country, he was merely- the representative of party
views, and partisan sentiments.
General Charles Cotesworth Pinckney, a gentleman
of ability, frankness, ;candor, and integrity, was sent
over as Monroe's successor. He was not received.
•' Cards of hospitality were refused him, and he was
threatened with being subjected to the jurisdiction of

214 LIFE OF OLIVER ELLSWORTH.
the Minister of Police ; but, with becoming firmness,
he insisted on the protection of the law of nations due
to him as the known Minister of a foreign Power."
Towards the latter end of January, 1797, he received
written notice to quit the territories of France, and
accordingly proceeded to Amsterdam, where he waited
for instructions from home. The French Government
protested that it would not receive another Minister
Plenipotentiary from the United States until the griev
ances of France were redressed ; the chief grievance
being the Jay treaty. To its own list of outrages, it
now added an act annulling the principle oifree ships,
free goods, incorporated into the treaty of 1778, and
declaring all Americans serving in British vessels pi
rates, to be treated with the utmost rigor.
The news from France induced President Adams to
convene Congress at an extra session, on the 15th day
of May,^ What measures should be adopted in the
present conjuncture was a subject of general interest
and inquiry. Hamilton was of opinion that a commis
sion extraordinary, with Mr. Madison a member of it,
should be sent to France to explain, demand, negotiate,
&c.' Ellsworth's ideas may be gathered from the fol
lowing letter, written at Springfield, Massachusetts,
the day before Congress assembled : —
' Since leaving Philadelphia,' he says, ' I have at
tended courts in New York, Connecticut, and Ver
mont, and been in the western parts of Massachusetts
and New Hampshire, and found everywhere an in
creased and increasing attachment to the Government;
' President's Message to Congress, of May 16th, 1797,
' 1797.
' Hamilton to Wolcott, March 30th, 1797. Federal Administra
tions, vol. i., p. 484.

ENVOY EXTRAORDINARY TO FRANCE. 215
and I have no doubt that any measure which, in the
present crisis, it may judge expedient to adopt, will
have general acquiescence and support from this quar
ter of the Union. All expect that Congress will do
something, though there seems to be no settled opinion
what that will or ought to be. Probably an embargo
till the next meeting of Congress, removable by the
President, and accompanied with the trial of a special
Envoy, would be the most satisfactory. And it may
be the best measure that will be found practicable ;
but of this, your information from the South, and from
Europe, must better enable you to judge. Should the
idea of an Envoy be admitted, may not some able
character from the Eastward, and Mr. Pinckney, be
joined in the commission, with plenary power, how
ever, to either, in the absence of the other.' '
The President's speech at the opening of Congress,
firm, patriotic, resolute, and dignified, was cordially
received. He expressed, what was the general wish
and opinion of the friends of his Administration, a
desire for peace, and an intention to renew negotia
tions to secure it. At the same time, he recommended
measures for defence, and preparation for resistance,
if that should finally be rendered necessary. ' Since
writing you from Springfield,' says Ellsworth, in a let
ter to Wolcott from Boston, 'I have attended court
at Portsmouth, and have now been some days at this
place. The President's speech is well received, and if
well answered by both Houses, as we expect, will do
much good at home and abroad. I repeat that neither
Congress nor the Executive need hesitate about any
proper measures, from an apprehension that public
' Ellsworth to Wolcott, May 14th, 1797, Federal Administrations,
vol. i., p- 523.

216 LIFE OF OLIVER ELLSWORTH.
opinion and spirit will not support them. There is
still, however, such diversity of opinion among the
best of men, as to the means expedient to be taken,
that I can give no useful information on that point,
and perhaps went too far in the conjecture I hazarded
in my former letter.' '
The President, according to his intention to renew
negotiations, as declared to Congress, sent out an ex-
ti'aordinary commission to treat with the French Gov
ernment, which was composed of General Pinckney,
John Marshall, and Elbridge Gerry. The progress and
result of their mission is stated in the subsequent hfe
of Marshall. We shall not, therefore, dwell upon the
details here. Generally, we may observe, that they were
treated with the greatest rudeness and indignity, and
could accomplish no good end without first assenting
to terms that would have compromised the honor and
essential interests of their country. When the treat
ment to which they had been subjected, and the terms
of negotiation which had been proposed to them be
came known to their countrymen, on the publication
of their despatches, a general outburst of patriotic
feeling was everywhere witnessed. This confirmed
and supported the just sentiments of Congress, and
immediate measures were adopted to put the coun
try in a state of preparation for war. Additions
were made to the Navy, and the Navy Department
created. The President was empowered to raise
a Provisional Army, in case of war being declared
against the United States, or actual invasion, or immi
nent danger of invasion before the next meeting of
Congress. This army was to consist of ten thousand
' Ellsworth to Wolcott, May 29th, 1797. MS. See also Federal
Administrations, vol. i., p. 540.

ENVOY EXTRAORDINARY TO FRANCE. 217
men, enlisted for a term not exceeding three years,
together with such volunteers as the President might
accept. Finally, the armed vessels of the United
States were authorized to capture and bring into port
any French armed vessel depredating on American
commerce ; all commercial intercourse between the
two countries and their dependencies was suspended,
and merchant vessels, in addition to resisting capture,
were now authorized to make recaptures.
' I will never send another Minister to France,' said
the President to Congress, after it appeared that the
negotiation had ceased, 'without assurances that he
will be received, respected, and honored as the repre
sentative of a great, free, powerful, and independent
nation.' '
With an army^ raised and to be raised, with Wash
ington at its head as Lieutenant-General, with all our
accumulated grievances unredressed, and no opening
for the resumption of negotiation, the prospect cer
tainly was, that war must ensue. Such was the expec
tation through the summer of 1798. No change visible
to the public eye was discernible in the French coun
sels. Preparation for hostilities went on. Further
retaliatory measures were adopted by Congress.^ The
public pulse beat high and strong. The position of
' President's Speech to Congress, June 21st, 1798.
^ Twelve additional regiments were added to the regular army, to
gether with some light dragoons, to continue during the pending dif
ficulties with France.
^ Such as the suspension of the treaties between the two countries,
and instructions to our public ships to capture any French armed
vessel whatever, with a view to condemnation, and permission to issue
commissions to private armed vessels.

218 LIFE OF OLIVER ELLSWORTH.
the Government, and the sentiments of the people,
were in harmony. The cup of reconciliation, to use
the language of Washington, in accepting the com
mand of the army, had been exhausted to the last
drop, and they could with pure hearts appeal to Hea
ven for the justice of their cause, and trust the result
to Providence.' And yet, it has been absurdly pre
tended that the Federal leaders, especially Hamilton,
had ulterior views, and while preparing for the con
flict with France, were, by means of these very war
measures, by aid of the military forces, either directly
or indirectly, bent on effecting such changes in the
Constitution as would perpetuate their power, or even
substituting a monarchy in place of the Federal Re
public. It is to be regretted, that this charge of a past
age, made in a time of party animosity, the suggestion
of excited fears, or disappointed hopes, should be re
produced in this, and arguments adduced to give it
currency and support. Upon what insubstantial grounds
all such suspicions or conjectures were built then, or
are constructed now, any one may perceive who will
take the trouble to read the tissue of evidence with
which they are attempted to be supported.^ Nothing,
it seems to us, can be more destitute of any real foun
dation. In the temper, and with the preparations we have
described, Congress adjourned on the 19th of July.
The President retired to his farm at Quincy. While
there, he was called upon to determine the relative
rank of the three Major-Generals whose offices had
been created by the act of Congress augmenting the
' Washington to Adams. Writings of Washington, vol. ii., p.
261. ' See Writings of Jefferson, and Life and Works of John Adams,
vol. i., chap. X., passim.

ENVOY EXTRAORDINARY TO FRANCE. 219
regular army. His own conduct in regard to this
question of rank had not been altogether consistent ;
but, in the end, he was compelled, much to his disgust
and annoyance, to appoint Hamilton as second in com
mand. Washington's letter to him, respecting the
appointment of officers — a letter whose blunt and im
perative tone no man would have resented more highly
than Washington himself, had it been addressed to
him under similar circumstances — effected a compli
ance with his wishes.' No doubt the abilities of Ham
ilton, and perhaps the expectation of the public, made
his appointment, in the rank second only to the Com
mander-in-chief, expedient and proper. But both Knox
and Pinckney were superior to him in former rank,
and the President assumed the ground that the rules
of military service, as well as delicacy and propriety,
required that, in the present arrangement, their prece
dence should be preserved. There certainly was great
force in this view of the subject, although, as the
organization was a new one, appointments might be
made, according to strict military ideas, without refer
ence to antecedent rank; yet, considering Knox's ser
vices in the Revolution, and his service in the War
Department, the President might well feel great reluc
tance, even if that reluctance had not been stimulated
by hatred to Hamilton, to put him last on the list.
But his wishes were disregarded, and he was com
pelled, under circumstances really amounting to dti-
resse, to give Hamilton the superior place. In conse
quence, Knox, who really had much ground for cha
grin, declined his appointment; but Pinckney, waiving
all considerations of rank, accepted his.
We have no doubt that Adams, seeing how powerful
' September 25, 1798. Writings of Washington, vol. xi.

220 LIFE OF OLIVER ELLSWORTH,
was the weight of General Hamilton, the hold he had
on the mind of Washington, on the Federal party, on
the wealthiest and most powerful classes of his coun
trymen, felt, and naturally enough too, that with his
position in the army, in case of war, he could bring a
combination of influence to bear on the Executive, in
any contested point, to which he must yield, or be
crushed. In a word, that General Hamilton would
virtually dictate his line of conduct, and probably, at
the next election, obtain his place.' This situation,
and this prospect, would have aroused a spirit less
proud, less resolute, than the spirit of John Adams;
but w^hen viewed through the medium of his impatient
and jealous temper, it became intolerable. Here, then,
we venture to think, is to be found the impelling bias
that determined his opinion in favor of another mis
sion to France, on receiving certain assurances that a
Minister would be received.
Whether the measure itself was, under the circum
stances, a wise one, whether consistent with the posi
tion our Government had assumed, must be deter
mined, not altogether, nor chiefly by the result, for
subsequent and accidental causes may give a pros
perous issue to the most ill-judged scheme, but on a
view of the situation of affairs as they existed at the
time it was conceived.
In considering this question, every dispassionate
mind, we think, will agree, that the wrongs and in
sults of France to this country justified war; that war
being waived, it was not demanding too much, coi>
sidering that two of our attempts at reconciliation had
' In one of his letters to Cunningham, Adams says : — ' The
British faction was determined to have a war with France, and Alex
ander Hamilton at the head of the army, and then President of the
United States,'

ENVOY EXTRAORDINARY TO FRANCE, 221
been rejected with indignity and outrage, to require of
France, if she desired peace, to take the initiative, and
send hither a Minister to negotiate. This step would
evince her sincerity, and give unmistakeable evidence
of pacific sentiments. Either a declaration of war, or
leaving France to take the requisite steps to insure
peace by sending a Minister to this Government, was
obviously the course prescribed to the Administration
by considerations of dignity, by the regard due to the
national honor, and a just sense of the national charac
ter. The latter alternative was what the friends of
the Administration required. But, suddenly, without
consultation with them, without even intimating his
purpose to his Cabinet, the President, on the 18th of
February, 1799, nominated a Minister to France. It
struck everybody with astonishment — friends and
foes alike. Form whatever opinion we may as to the
propriety of the measure itself, the mode adopted by
the President in accomplishing it must be deemed
erratic and unwise. It was very much like stealing a
march upon his friends. Surely, this was not the
course to inspire or retain confidence ! In truth, highly
as we must respect and applaud the abilities and revo
lutionary services of President Adams, much as we
must venerate many points of his character, it is,
nevertheless, obvious that he was not fitted for a
leader, or to be at the head of the Government. He
had not sufficient repose of character, steadiness, dis
cretion, and temper for such a post.
But, on what grounds did he proceed in making the
nomination? Had he received assurances that his
Envoy Avould be ' received, respected, and honored as
the Representative of a great, free, powerful, and inde
pendent nation.' Assurances, indeed, of this charac
ter, had been received from M. Talleyrand, and through

222 LIFE OF OLIVER ELLSWORTH.
as regular a channel, perhaps, as could be expected ;
but the previous conduct of M. Talleyrand had been
marked by such circumstances of intrigue and indirec
tion, as to afford no ground of reliance on his sincerity.
Indeed, the leading supporters of the Administration
believed his professions to be illusory; that they were
intended to distract our counsels, impede our measures
for defence, and foster internal divisions in the country.
Mr. Adams, however, proceeded on a different hypo
thesis, and we have mentioned the probable bias that
led to his decision. At the same time, it is obvious,
that he regarded the assurances of M. Talleyrand with
misgiving. The very message nominating Murray as
Minister, contained this language : —
' If the Senate shall advise and consent to his ap
pointment, effectual care shall be taken that he shall
not go to France without direct and unequivocal
assurances from the French Government, signified by
their Minister of Foreign Relations, that he shall be
received in character; shall enjoy the privileges
attached to his character by the law of nations ; and
that a Minister of equal rank, title, and powers, shall
be appointed to treat with him — to discuss and con
clude all controversies between the two Republics by
a new treaty.'
If the assurances already received from Talleyrand
were deemed reliable, and as made in good faith, why
did not the President send his Minister to France,
without waiting for other assurances ? If they were
not sufficiently reliable and satisfactory for that pur
pose, why did he nominate a Minister at all ?
In truth, the President could not well help feeling,
that risking another Minister at Paris, on the mere

ENVOY EXTRAORDINARY TO FRANCE. 223
faith of M. Talleyrand's professions, would, presump
tively, expose our Government to a repetition of pre
vious insults and indignities, and consequent humilia
tion. But such was his restiveness, under the over
shadowing influence of the military chiefs, that he
could not forego the opportunity of an opening, how
ever small; of a chance, however doubtful, to be re
lieved of it. No doubt he was attached to the good
of his country; but, to say that personal considerations
did not mingle with his patriotism in this important
act of his life — that he did not dread Hamilton, and
wish to conciliate the opposition — is what a careful
study of the transaction will scarcely warrant.
When the message of the President, nominating
Murray as Minister Plenipotentiary to the French
Republic, was received in the Senate, it was referred
to a committee for consideration. This committee had
an interview with the President, the result of which '
was, that he consented to nominate a commission, in
room of Murray as sole Minister. Accordingly, on the
25th of February, 1799, he nominated 'Oliver Ells
worth, Esq., Chief Justice of the United States, Patrick
Henry, Esq., late Governor of Virginia, and William
Vans Murray, Esq., our Minister resident at the-
Hague, to be Envoys Extraordinary and Ministers
Plenipotentiary to the French Republic; with full
powers to discuss and settle, by a treaty, all contro
versies between the United States and France. It is
not intended that the former of these gentlemen shall
embark for Europe, until they shall have 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 the character by the law of
nations ; and that a Minister, or Ministers, of equal

224 LIFE OF OLIVER ELLSWORTH.
powers, shall be appointed and conimissioned to treat
with them,'
Mr, Henry declined his appointment, on account of
his age, and Governor William R, Davie, of North
Carolina, was appointed in his place, Ellsworth, it is
said, disapproved the mission, and accepted his com
mission with reluctance. This is doubtless true; but
none of his correspondence bearing directly on either
point has, to my knowledge, been preserved. There is
evidence, however, that he did not view the mission
with the same heightened sentiments that animated his
friends ; nor with such feelings as he discovered in the
crisis of the Jay treaty. He occupied, in truth, a posi-
, tion of quasi neutrality between Adams, Hamilton,
and their respective friends, although his sympathies
leaned strongly to the side of the latter.
On the 30th of July, a letter was received from M.
Talleyrand, containing the assurances required by the
President as "conditional to the embarkation of our
Envoys. ' It was certainly unnecessary,' said he in the com
munication that contained these assurances, ' to suf
fer so many months to elapse for the mere confirma
tion of what I have already declared to Mr. Gerry,
and which, after his departure, I caused to be declared
to you [Mr. Murray] at the Hague.'
This quiet censure of the President for requiring a
repetition of assurances which he had already made the
ground of important public action was the natural
result of the imputation cast on M. Talleyrand's sin
cerity by the mere fact of demanding it. The
President, however, deemed it far below the dig
nity of his position, 'to take any notice of Talley-

ENVOY EXTRAORDINARY TO FRANCE. 225
rand's impertinent regrets, and insinuations of super
fluities.' '
He instructed the Secretary of State to request our
Envoys, that, ' laying aside all other employments,
they make immediate preparations for embarking.
Whether together or asunder, from a northern, a
southern, or a middle port, I leave to them. I am
willing to send Truxton, or Barry, or Talbot, with
them ; consult the Secretary of the Navy and Heads
of Department on this point. Although I have little
confidence in the issue of this business, I wish to delay
nothing, to omit nothing.' ^ Why, then, fly in the face
of the best opinion of his day, and begin a business,
in the issue of which he had so little confidence?
Instructions for our Envoys were prepared, and no
obstacle seemed to interpose to their departure. But,
about the 1st of September, news arrived of another
revolution at Paris. The Directory, with the excep
tion of Barras, was changed, the clubs were revived,
and appearances were portentous of ' another reign
of democratic fury, and sanguinary anarchy.' As the
men who had given the assurances relative to the
mission were no longer in power, and as their succes
sors might possibly disavow them, it was thought by
the Cabinet that a temporary suspension of the em
bassy was expedient. A letter to that effect was writ
ten to the President by the Secretary of State, which
expressed the sentiments of all the members of the
Cabinet, with the exception of the Attorney-General.
Ellsworth concurred with them in opinion, and at the
' Adams' Works, vol. ix., p. 10. Letter to Pickering, August
6th, 1799.
^ Ibid. ' Our operations and preparations,' said he in the same
letter, ' by sea and land, are not to be rekxed in the smallest degree.
On the contrary, I wish them to be animated with fresh energy.'
Vol. IL — 15

226 life OF OLIVER ELLSWORTH.
suggestion of Mr. Pickering, as it would seem, and
perhaps of Wolcott also, he wrote a guarded letter to
the President, from Hartford, as follows : —
' Sir : — If the present convulsion in France, and
symptoms of a greater change at hand, .should induce
you, as many seem to expect, to postpone for a short
time the mission to that country, I wish for the ear
liest notice of it. The Circuit Court in this State and
Vermont fell through last spring from the indisposi
tion of Judge Chase, and must now fall through
again from the indisposition of Judge Cushing, unless
I attend them. I am beginning the Court here, and
should proceed on to Vermont, if I was sure of not
being called on, in the meantime, to embark. It is,
Sir, my duty to obey, not advise, and I have only to
hope that you will not disapprove of the method I
take to learn the speediest intimation of yours.
' I have the honor,' &c.'
On the same day, he thus wrote to Mr. Pickering :
' Dear Sir : — I have lately received your favors of
the 11th, 13th, and 16th, containing a great deal of
important matter, and shall have the honor to write
you an answer the moment I can get free from the
Circuit here, which I am obliged to attend, owing to
the indisposition of Judge Cushing, and to the busi
ness, to which I am obliged to pay double attention to
repair the loss of the last term through the indisposi
tion of Judge Chase. I have this day Avrote a letter
to the President, from which he will easily collect my
' Adams' Works, vol. ix., p. 31. September 18th [19th, quer^],
1799.

ENVOY EXTRAORDINARY TO FRANCE. 227
opinion concerning a temporary suspension of the mis
sion to France, though I have endeavored to write in
a manner that could not give offence.
' I am, dear Sir,' &c.'
Ellsworth was not very sanguine as to the effect of
his letter upon the President. ' Possibly,' thus he
wrote Wolcott, ' my letter to him a few days since
may have for answer that the Envoys are not to em
bark till it can be better seen to whom they should be
addressed ; but this is more indulgence than I antici
pate.'^ The reply he received, however, was more
favorable to his views than he expected. ' The con
vulsions in France,' wrote the President, 'the change
of the Directory, and the prognostics of greater change,
will certainly induce me to postpone, for a longer or
shorter time, the mission to Paris. I wish you to pur
sue your office of Chief Justice of the United States
without interruption, till you are requested to embark.
You will receive from the Secretary of State letters
which will occupy your leisure hours. I should be
happy to have your own opinion upon all points. We
may have further information from Europe. If your
departure for Europe should be postponed to the 20th
of October, or even to the 1st of November, as safe
and as short a passage may be expected as at any
other season of the year. This is all I can say at
present.' ^
' MS. Letter. It is dated September 19th ; but this may be an
error of the transcriber ; possibly it should be the 18th.
2 Federal Administrations, vol. ii., p. 265. Sept. 20th, 1799.
''Adams' Works, vol. ix.,' p. 34. September 22d, 1799. On the
9th of September, the President had written a private letter to Stod-
dart, the Secretary of the Navy, in which he used this language : —
' I have no reason nor motive to precipitate the departure of the

228 LIFE OF OLIVER ELLSWORTH.
The substantial part of the President's letter Ells
worth communicated to Pickering on the 26th of Sep
tember, but unaccompanied by any remark.' On the
1st of October, however, he thus wrote Wolcott : —
'Judge Cushing has finally relieved me from Ver
mont, and the President, in his very great wisdom,
has suspended my destiny to France, so that I have
time to sit down to think ; and I think that the pros
pects of that distracted country and of Europe, and of
course our own, begin to brighten. Pray indulge the
same thought, if you can, for you certainly stand in
need of it.
' Very sincerely yours,' &c.^
The Cabinet thought if the President should meet
them at Trenton, whither the public offices had been
removed on account of the yellow fever at Philadelphia,
before any final decision was made respecting the mis
sion to France, it would be ' an eligible step.' They
wrote him to that effect, through the Secretary of
State, on the 24th of September. ' Governor Davie,'
thus he wrote, in communicating the opinion of
Envoys. If any information of recent events in Europe should
arrive, which, in the opinion of the Heads of Department, or of the
Envoys themselves, would render any alteration in their instructions
necessary or expedient, I am perfectly -willing that their departure
should be suspended until I can be informed of it, or until I can join
you. I am well aware of the possibility of events which may render
a suspension of the mission, for a time, very proper. France has
always been a pendulum. The extremest vibration to the left has
always been suddenly followed by the extremest vibration to the right.
I fear, however, that the extremest vibration has not yet been swung.'
Ibid., p. 19.
' MS. Letter, September 26th, 1799.
' Federal Administrations, vol. ii., p. 266.

ENVOY EXTRAORDINARY TO FRANCE. 229
himself and colleagues, 'will probably be here the
first week in October, and Judge Ellsworth will doubt
less be ready to meet him ; or if you should conclude
to come on, the Judge would certainly be gratified in
waiting to accompany you.' ' A letter from Stoddart,
the Secretary of the Navy, written the 13th of Sep
tember, and entering at large upon the reasons, public
and personal, in favor of the President's going to
Trenton at so important a moment, had already in
duced him to undertake the journey.^
On his way to Trenton, he called and saw Ellsworth
at Windsor. ' I was, the evening before last,' thus
wrote the latter to Pickering, on the 5th of October,
' honored with a call from the President of half an
hour; but nothing passed respecting my going to
Trenton. I have, notwithstanding, presumed to write
him by this day's mail, as follows : — " Since you
passed on, I have concluded to meet Governor Davie
at Trenton, which he probably will expect, and which,
besides putting it in our power to pay you our joint
respects, and to receive as fully any communication of
your views as you may wish to make, may enable me
to accompany him eastward, shotdd you continue in
clined to such suspension of our mission as, under pre
sent aspect, universal opinion, I believe, and certainly
my own, would justify. It is a matter of some regret.
Sir, that I did not consult you on the proposition of
this visit; but if I err, experience has taught me that
you can excuse."^ Governor Davie will doubtless
arrive before me, and I hope will be made comfortable
' Adams' Works, vol. ix., p. 36. Pickering to Adams, Septem
ber 24th.
" See Stoddart's Letter, and Adams' Reply of September 21st, in
Adams' Works, vol. ix., pp. 25, 33.
' This letter is printed in Adams' Works, vol. ix., p. 37.

230 LIFE OF OLIVER ELLSWORTH.
and easy. It will be Thursday evening or Friday
morning next before I shall have the pleasure of seeing
you and him.
' In the meantime, I am,' &c.'
As the President had an intimation that Ellsworth
might go to Trenton, in Pickering's letter of the 24th
of September, it is a little singular that, while at
Windsor, he should make no allusion to it. Ellsworth
himself had not yet, it would appear, determined to
go, Doubtle.-;>, Pickering had suggested the propriety
of his presence at Trenton ; but, apparently, not until
after the President's departure did he conclude to
make the journey. As it was a subject of deliberation,
however, a question yet to be decided, he afterwards
regrets that he did not consult with the President
respecting it. Was there any indirection in this, as
has been insinuated?^
Mr, Adams, in his labored defence of his conduct
respecting the French mission, published originally in
the columns of the Boston Patriot,' thus describes his
visit to Ellsworth : — 'On my way,' he says, ' I called
upon Chief Justice Ellsworth, at his seat in Windsor,
and had a conversation of perhaps two hours'* with
him. 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 imme
diately, he was ready. If it was judged more expe
dient to postpone it for a little time, though that
might subject him to a winter voyage, that danger
had no weight with him. If it Avas concluded to defer
it till the spring, he was willing to wait. In this dis-

MS. Letter. " Adams' Works, vol. ix., p. 38, note.
In the year 1809. '' Ellsworth says half an hour.

ENVOY EXTRAORDINARY TO FRANCE. 231
position I took leave of him. He gave me no inti
mation that he had any thought of a journey to
Trenton,' '
Although Adams had received intimation, as we
have already seen, that Ellsworth might go to Tren
ton, he was very mistrustful as to the object of the
journey. ' I transiently asked one of the Heads of
Departments,' he says, ' whether Ellsworth and Ham
ilton had come all the way from Windsor and New
York to persuade me to countermand the mission. . . .
I know of no motive of Mr. Ellsworth's journey. How
ever, I have already acknowledged that Mr. Ells
worth's conduct was perfectly proper. He urged no
influence or argument for counteracting or postponing
the mission.'^
Ellsworth's opinion, however, in favor of suspend
ing the mission was well understood by the President, i
It was so declared in the letter announcing his inten
tion to go to Trenton, And, evidently, from the lan
guage of that letter, Mr, Adams, while at Windsor,
had concurred in its propriety. At any rate, he had
indicated that he was not committed to an adverse
opinion. Adams arrived at Trenton on the 10th of October.
The convulsion in France, the revolution in the Direc
tory which had resulted in the retirement of all the
members but Barras, including Talleyrand himself,
and which had induced the President to write Ells
worth that he should postpone, for a longer or shorter
time, the mission to Paris, still presented the same
pressing arguments for delay. But they were rein
forced, and rendered more impressive by news from
Europe which arrived at Trenton on the 13th of Octo-
' Adams' Works, vol. ix., p. 252. "^ Ibid., p. 299,

232 LIFE OF OLIVER ELLSWORTH.
her. The British, under the Duke of York, had
landed in Holland, the Dutch fleet had been captured,
and Suwarrow was victorious in Switzerland. It might
be premature to argue, from these successes, that the
Bourbons were likely to be presently restored ; but in
the unsettled state of the French Government, united
with the gloomy state of their military affairs, there
was every inducement for a masterly inactivity on our
part ; a wise observation of the progress of events be
fore committing the Government by positive acts. At
all events, delay could work no possible harm. In the
meantime, the new Government would have an oppor
tunity to renew the assurances insisted upon from the
discarded Directors. But the President, stimulated,
no doubt, in part, by the suspicion that there was a
combination, with Hamilton at its head, to defeat the
mission altogether, determined that the Envoys should
immediately proceed, although, as we shall presently
see, without anj' confidence in the success of their
mission. In two or three days after Adams arrived at Tren
ton, Ellsworth came. Governor Davie had already
been there several days. They were invited to dine
with the President alone, in order that they might
converse with entire freedom. 'At table,' says the
host, ' Mr, Ellsworth expressed an opinion somewhat
similar to that of the Heads of Departments, and the
public opinion at Trenton, "Is it possible. Chief Jus
tice,' said I, "that you can seriously believe that the
Bourbons are, or will be soon, restored to the throne
of France?" " Why," said Mr, Ellsworth, smiUng, "it
looks a good deal so." " I should not be afraid to stake
my life upon it, that they will not be restored in seven
years, if they ever are," was my reply. And then I
entered into a long detail of my reasons for this

ENVOY EXTRAORDINARY TO FRANCE. 233
opinion. .They would be too tedious to enumerate
here, and time has superseded the necessity of them.
The result of the conversation was, that Mr. Davie
was decidedly for embarking immediately, as he always
had been from his first arrival, and Mr. Ellsworth de
clared himself satisfied, and willing to embark as soon
as I pleased.''
The inference from the foregoing language clearly
is, that the conversation thus described took place be
fore the order to embark was given ; and that Ells
worth was convinced of the propriety of the Envoys
proceeding on the mission. But it is stated, on the
contrary, that it occurred after the order to embark
had been given,^ when, of course, any refutation or
contestation of the President's reasoning would be use
less and uncalled for. It is also stated, that Ellsworth,
instead of being ' satisfied and willing to embark,' dis
approved of the mission to the last; that, on personal
grounds, he was anxious to remain, and would have
refused to go at all, but for the apprehension that Burr
or Madison would be sent in his place.'
The President's reasoning on the consequences of
the mission was recited by Ellsworth to Pickering and
Wolcott. ' The President thinks the French Govern
ment,' thus wrote Pickering to Washington, ' will not
accept the terms which the Envoys are instructed to
propose ; that they will speedily return ; and that he
shall have to recommend to Congress a declaration of
war. . . . But as to the French negotiations producing
a war with England; if it did, England could not hurt
us I This last idea was part of Mr. Ellsworth's recital
' Adams' Works, vol. ix., p. 254.
^ Federal Administrations, vol. ii., p. 273. Mr. Gibbs, however, it
will be observed, gives no authority for his statement,
= Ibid.

234 LIFE OF OLIVER ELLSWORTH.
to Mr, Wolcott and me. I had not patienqe to hear
more, but have desired Mr. Wolcott to commit the
whole recital to writing, which he promised to do.
And yet the President has, several times, in his letters
to me from Quincy, mentioned the vast importance of
keeping on good terms with England.' '
On the evening of the 15th of October, the President
summoned the Cabinet to a meeting. The instructions
to the Envoys were discussed, amended, and unani
mously approved. They separated about 11 o'clock.
Nothing had been said as to the delay of the mission ;
but early the next morning the President, without
consultation, or intimation of his purpose, gave his
final orders for the departure of the Envoys by the
1st of November.
' Federal Administrations, vol. ii., p. 280. Writings of Washing-
ington, vol. xi., p. 572. October 24th, 1799.

MISSION TO FRANCE. 235

CHAPTER XIII.
1799-1800.
CONTINUATION OF THE MISSION TO FRANCE.
In the preparation of the instructions to the Envoys,
Ellsworth was freely consulted. 'I propose to send a
copy of the draught of instructions to Mr. Ellsworth,'
wrote the Secretary of State to the President, ' and
to invite his observations upon them, as it is im
portant that he should be satisfied. And if want of
time should prevent a second transmission of the in
structions to you (which, however, I think will not be
the case), may I take the liberty of proposing, if your
judgment should not be definitively made up on par
ticular points, that we may, if Mr. Ellsworth should
desire it, and we all concur in opinion with him, make
alterations in the draught? Provided that none of
the ultimata be varied, except that which prescribes
the mode of organizing the Board of Commissioners.' '
In his reply, the President said : — 'I am glad you
have sent a copy to the Chief Justice. I had several
long conversations with him last winter, on the whole
subject. He appears to me to agree most perfectly in
sentiment with me upon every point of our policy
towards France and England; and this policy was
' Ada:ms' Works, vol. ix., pp. 23, 24. September 11th, 1799.

236 LIFE OF OLIVER ELLSWORTH.
founded only in perfect purity of moral sentiment,
natural equity, and Christian faith towards both na
tions. I am, therefore, under no hesitation in the pro
priety of sending the draught to him, nor in consent
ing that, if want of time should prevent a second
transmission of the instructions to me, the Heads of
Department, in concert with him, may make alterar
tions in the draught, within the limitations you pro
pose. Indeed, Mr. Ellsworth is so great a master of
business, and his colleagues are so intelligent, that I
should not be afraid to allow them a greater latitude
of discretion, if it were not unfair to lay upon them
alone the burden of the dangerous responsibility that
may accompany this business.''
The following are Ellsworth's observations on the
draught of instructions, contained in a letter to the
Secretary of State : —
' Dear Sir : — Having given your draught of instruc
tions such perusal as the hurry and pressure of a court,
crowding two terms into one, admits of, I remark, with
all the freedom you invite, that to insist that the
French Government acknowledge its orders to be
piratical, or, which is the same, absolutely engage to
pay for the depredations committed under them, is, I
believe, unusually degrading, and which would proba
bly defeat the negotiation, and place us in the wrong.
The alternative of insisting that the fifth Commissioner
shall be a foreigner is more than was insisted with
Great Britain, and a "ground, as I appfehend, hardly
sufficient to risk a failure upon, though an eligible
arrangement to attempt. The style of the instructions
' Adams' Works, vol. ix., p. 31, September 19th, 1799.

MISSION TO FRANCE. 237
is certainly nowhere heightened beyond the provoca
tion received; yet in some few instances, which will
readily occur to you on revision, is more spirited, as it
seems to me, than can be necessary to impress the
Envoys, or than, in the event of publication, would be
evidential of that sincerity and conciliatory temper
with which the business should appear to be con
ducted. I still think well of Governor Davie, and
believe Mr. Murray to be honest. Younger, some
what, than myself, it is not strange if they discover
more promptitude to obey an honorary call.
' I am,' &c.'
Two weeks later, on the 5th of October, he thus
wrote : —
' Dear Sir : — I have been favored with your letter
of the 28th ultimo. Mr. M.'s [Murray] reasons for
thinking that the French, in the state of things con
templated by our mission, would not abandon their
construction of the treaty with respect to the role
d' equipage, are among those which led me to doubt
the expediency of insisting that they should do it, or
even of insisting that the fifth Commissioner should be
a foreigner, which they would consider as abandoning
the chance for their construction, unless they could so
arrange the choice as to obtain a foreigner who was
or might be corrupted. But I confess,. Sir, that I
have not skill enough to calculate a week beforehand
for the meridian of France, nor hardly for our own.
I am as satisfied as Mr. M, can be of the rectitude of
our construction, and as sensible that Commissioners,
' MSS. September 20th, 1799.

238 LIFE OF OLIVER ELLSWORTH.
as under the British treaty, would give us but an
equal chance to establish or lose it.' '
As an indispensable condition of a treaty, our En
voys were instructed that it must contain a stipula
tion, making compensation for all losses and damages
sustained by citizens of the United States in conse
quence of irregular or illegal capture or condemnation
of their vessels and other property under color of
authority or commissions from the French Republic,
or its agents. And all captures or condemnations
were deemed irregular or illegal, when contrary to
the law of nations, or the stipulations of the treaty of
1778 while that treaty remained in force. This idea
of compensation, we shall presently see, prevented the
negotiation of a treaty, and resulted in a temporary
settlement, which left the points that could not then
be adjusted, for future arrangement.
The Envoys sailed for France, on the 3d of Novem
ber, in the frigate United States, Captain Barry, who
had instructions to land them in any French port
they might prefer, or touch at any other ports which
they might desire. They arrived at Lisbon on the
27th, where they had previously agreed to touch.
Ellsworth suffered much during the passage from sea
sickness. Indeed, his vigorous frame had already lost
somewhat of its elasticity and tone from ' some of the
infirmities of approaching age,' and was not very well
fortified to resist the unfavorable influences of a stormy
winter's voyage.
At Lisbon, they were informed of the revolution of
the 18th Brumaire, which had resulted in the over
throw of the Directory, and the virtual concentration
' MSS. The remainder of this letter we have quoted, ante, p. 229.

MISSION TO FRANCE. 239
of authority in the hands of Napoleon, as first Consul.
They were a good deal embarrassed what course to
pursue. Their letters of credence might not avail
them with the new rulers ; and thus their mission, if
not frustrated, at all events, delayed. However, they
finally determined to sail for L'Orient, and thence
proceed to Paris, if their information should justify
that step. Accordingly, on the 21st of December they
set sail; but they encountered a severe gale, which
continued nearly a fortnight, drove them out of their
course, and finally induced them to steer for Corunna,
in Spain, where they disembarked. Ellsworth's suf
ferings were extreme, and from their effects he never
recovered. The consequences were aggravated by the
journey he was now compelled to undertake through
Spain and France to Paris.
On the 1 7th of January, the Envoys despatched a
courier to that city with a letter to the Minister of
Foreign Relations, announcing their arrival at Co
runna, and requesting that passports might be sent
them for the journey to Paris. Ten days later they
left Corunna, and on the 9th of February arrived at
Burgos, where they met their courier, on his return.
He brought a letter from Talleyrand, saying, that
they ' were expected with impatience, and would be
received with warmth ;' and that the form of their let.
ters of credence was immaterial, and would be no
obstacle to entering upon the negotiation. Thus
assured, they left Burgos on the 11th of February;
and after a long and most disagreeable journey, in the
course of which they endured great fatigue, privation,
and hardship, they arrived at Paris on the 2d of
March. Mr. Murray, from the Hague, had arrived
the evening before. Talleyrand was at once informed
of their presence in Paris. His reception and treat-

240 LIFE OF OLIVER ELLSWORTH.
ment of them was all that -could be desired. On the
8th, they were presented to the First Consul in form.
Joseph Bonaparte, M. Fleurieu, formerly Minister of
Marine, and M. Roederer, then Counsellor of State,
were appointed to conduct the negotiation on the part
of France. But the indisposition of Joseph Bonaparte
prevented immediate attention to the business, and it
was not until the 2d of April that the negotiators had
their first conference. It was then discovered that the
powers of the French Ministers were not sufficiently
full and explicit ; and a further delay of several days
took place, in order that they might obtain an enlarge
ment of their authority. When that was accomplished,
the negotiation commenced.
On the part of the United States, it was chiefly,
nay, almost exclusively, conducted by Ellsworth. It
was a new, and unaccustomed scene to him ; and it has
been said, that ' although his usual vigor of mind did
not desert him, he appeared in it to less advantage
than in any other situation in which he was placed in
the course of his long and active life. But slightly
acquainted with the arts, the forms, and the ambiguous
and guarded language of diplomacy, he frequently
laid himself open to his adroit adversaries, and it
required all his firmness to recover the ground thus
incautiously lost. He was thought by the wily diplo
matists of the French Court, to have wasted much
time and talent in endeavoring to prove to them the
right or wrong of every position which was advanced
in the course of the negotiation, while they regarded
the whole business as a mere matter of bargain and
compromise ; this, however, is an error of judgment,
if it be one, which I trust our country will never wish
to see corrected in any of her public agents. When
it is considered that in addition to the difficulty of the

MISSION TO FRANCE. 241
business in which he was engaged, and the novelty of
his situation. Judge Ellsworth was, during this period,
suffering under the attacks of severe disease, it will not
be wondered at, that, in some minor points, the treaty
which he formed did not fully answer the just claims
and expectations of the American people. It was,
however, in all probability, the best that could be pro
cured, and, as such, was ratified by the President and
Senate.' '
Whatever want of facility or tact Ellsworth may
have discovered in the conduct of this negotiation, it
is certain that the honor and essential interests of his
country could not have been entrusted to more capa
ble hands. He may, possibly, from inexperience, have
been discomfitted in the skirmishing business of the
negotiation ; but, it is clear, that in the adjustment
finally made, he obtained all for his country, that,
under the actual circumstances, could be obtained.
Nobody could have done better. It became, at last, a
simple question, whether all our differences should be
left unaccommodated, or a temporary arrangement be
made, which would secure peace, without at all sacrific
ing our rights or interests. To be sure, less was obtained
in some respects, than could be wished ; but, the same
argument that was employed to sustain the Jay Treaty,
Was equally applicable to this negotiation.
To the claim of indemnity for depredations on our
commerce, the French Ministers answered, that if
allowed, the Treaties, for whose infractions the claim
had chiefly arisen, must be restored. The reply was.
that those treaties, having been violated by one part^".
and renounced by the other, a priority had since at
tached in favor of the treaty with Great Britain, which
' Analectic Magazine, vol. iii., p. 396.
Vol. IL — 16

242 LIFE OF OLIVER ELLSWORTH.
conceded certain exculsive rights to that country, and
which, seemingly, could not consistently be restored to
France. But this view of the subject, the French
Ministers would not entertain, and ' there appeared no
alternative, but to abandon indemnities,. or, as a means
of saving them, to renew, at least partially, the treaty
of commerce. Whether in fact it could, or could not be
renewed, consistently with good faith, then became a
question for thorough investigation.' The considera
tions that presented themselves to the minds of the
American Ministers, and which they communicated to
the American government, in the journal of their pro
ceedings,' induced the opinion, that every part of the
former treaties might be renewed without any breach
of good faith whatever. They, accordingly, offered a
renewal, Avith limitations of the 17th article, of the
commercial treaty, 'which, without compromising
the interests of the United States, would have given
to France what her Ministers had particularly insisted
on, as essential to her honor, and what they had given
reason to expect would be deemed satisfactory.'
But this overture only served to enlarge the
demands of the French Ministers, who now insisted
upon a total renewal of the treaties, without exception
or limitation, which brought the negotiation to a stand.
' The American Ministers, however, after a delibera
tion of some days, the progress of events in Europe
continuing, in the meantime, to grow more unfavorable
to their success, made an ulterior advance, going the
whole length of what had been last insisted on. They
offered an unlimited recognition of the former treaties,
' MSS. dated Oct. 4, 1800. The essential portions of it have been
printed by Mr. Gibbs, in the Federal Administrations, vol. ii, p. 436-
438.

MISSION TO FRANCE. 243
though accompanied with a provision to extinguish
such privileges claimed under them, as were detri
mental to the United States, by a pecuniary equivalent
to be made out of the indemnities which should be
awarded to American citizens. A compensation, which,
though it might have cancelled but a small portion of
the indemnities, was, nevertheless, a liberal one, for
privileges which the French Ministers had often ad
mitted to be of little use to France, under the construc
tion which the American government had given to the
treaties.' This offer, though it covered the avowed objects of
the French government, secured an engagement to pay
indemnities, as well as the power to extinguish the
obnoxious parts of the treaties. But the French
Ministers, wishing to avoid any engagement of this
kind, now abandoned the principles upon which the
negotiation had, for some time, proceeded, and insisted
that ' it was indispensable to the granting of indemni
ties, not only that the treaties should have an unquali
fied recognition, but that their future operations should
not be varied in any particulars for any consideration
or compensation whatever. In short, they thought
proper to add what was unnecessary, that their real
object was to avoid any indemnities, and that it was
not in their power to pay them. No time was requisite
for the American Ministers to intimate that it had
become useless to pursue the negotiation any further.
' It accorded as little with their views, as with their
instructions, to subject their country perpetually to
the mischievous effects of those treaties, in order to
obtain a promise of indemnity at a remote period, a
promise which might as easily prove delusive, as it
would reluctantly be made ; especially, as under the
guaranty of the treaty of alliance, the United States

244 LIFE OF OLIVER ELLSWORTH.
might be immediately called upon for succors, which if
not furnished, would of itself be a sufficient pretext
to render abortive the hope of indemnity. It only
remained for the [Envoys] to quit France, leaving the
United States involved in a contest ; and, according to
appearances, soon alone in a contest, which it might
be as difficult for them to relinquish with honor, as to
pursue with a prospect of advantage ; or else to pro
pose a temporary settlement, reserving for a definite
adjustment, points which could not then be satisfac
torily settled, and providing, in the meantime, against
a state of things of which neither party could profit.
They elected the latter, and the result has been the
signature of a Convention.'
The reasons thus assigned for abandoning the idea
of a treaty, and concluding a Convention, it seems to
us, are unanswerable. Indeed, a treaty of the char
acter contemplated by their instructions was utterly
out of the question. If, therefore, the Convention pre
served peace, without yielding any essential interest,
or sacrificing, in any point, the national honor, the
Envoys deserved, the praise and gratitude of their
country. What, then, were the terms of this celebrated
Convention ? They are thus summarily described in
a letter from Gouverneur Morris to Hamilton : —
'It' [the Convention,] 'contains, among other things,
a stipulation that, as the parties cannot agree about
the old treaties, nor the indemnities mutually due, or
claimed, they will negotiate further about them at a
convenient period, and until they shall have agreed
on those points, the treaty shall have no operation ;
but the relations of the two countries shall be regu
lated by that Convention ; that public ships, which
have been, or may be taken, shall be mutually re-

MISSION TO FRANCE. 245
stored ; that property captured or not yet definitely
condemned, shall be restored on proof of ownership ;
that debts shall be paid ; that the vessels of the two
nations, and their privateers, as well as their prizes,
shall be treated in the respective ports of each other,
as those of the nation the" most favored ; that free
ships shall make free goods, and the converse ; that
when neutral ships are convoyed, the word of the
officer commanding the convoy shall be taken, and no
visit allowed ; that when armed ships shall be permitted
to enter with their prizes, they shall not be obliged to
pay any duty, nor shall the prizes be seized, nor shall
the officers of the place make examination concerning
the lawfulness of such prizes ; but this stipulation is
not to extend beyond the most favored nation ; that
privateers belonging to an enemy shall not fit their
ships, sell or exchange their prizes, or purchase pro
visions, except what may be needful to go to the next
ports of their own country. Finally, this Convention
is unlimited in its duration ; such, my dear sir, is the
result of our French negotiation, which evidently
places us in a critical situation."
But not so thought Hamilton. To be sure, he did
not altogether approve the result attained by our
Envoys ; indeed, at first, he very much disapproved it.
But reflection led him to defend many of the provi
sions contained in the Convention, and maintain the
propriety of its entire ratification. ' In my opinion,'
thus he wrote Morris, ' there is nothing in it contrary
to our treaty with Great Britain. The annulling of
our former treaties was an act of reprisal in conse
quence of hostile differences, of which no other power
had a right to benefit; and which, upon an accommo-
' Works of Hamilton, vol. vi., p, 492. Dec. 19th, 1800.

246 LIFE OF OLIVER ELLSWORTH.
dation, might have been rescinded, even to the restora
tion of the sta,tu quo. Great Britain is now, in this
respect, in a better situation than she was when she
made the treaty. She has so far no good cause to
complain. There are, indeed, features which will not
be pleasant to the British Cabinet, particularly the
principle that free ships shall make free goods, and
that the flag of ships of war shall protect. As these
are points upon which Prance was endeavoring to form
hostile combinations against Great Britain, the giving
place to them in the Convention will have an un
friendly countenance towards her; and as it regards
good understanding between her and us, is to be re
gretted in the present moment. Yet, we had a right
to make these stipulations, and as they may be fairly
supposed to be advantageous to us, they are not, in
fact, indications of enmity. They give no real cause
of umbrage, and, considering the general interests of
Great Britain, and her particular situation, it does not
seem probable that they will produce on her part a
hostile conduct.
' As to the indemnification for spoliations, that was
rather to be wished than expected, while France is
laying the whole world under contribution. The people
of this country will not endure that a definitive rup
ture with France shall be hazarded on this ground. If
this Convention is not closed, the leaving of the whole
subject open will render it easier for the Jacobin Ad
ministration to make a worse thing. On the whole,
the least evil is to ratify. The contrary would finish
the ruin of the Federal party, and endanger our inter
nal tranquillity. It is better to risk the dangers on the
other hand, than on this side."
' Hamilton's Works, vol. vi., p. 496, Dec. 24, 1800.

MISSION TO FRANCE. 247
When it is remembered how high a spirit of resent
ment had been engendered against France in conse
quence of her aggressions, insults, and indignities, it
cannot excite surprise, that the results of the negotia
tion, especially in impassioned minds, should have
awakened a feeling of keen disappointment. They
demanded compensation ; indemnity for the past and
security for the future. That the latter was obtained ;
that the former was not abandoned, but left for future
adjustment; that this was the best result, then attain
able ; that in its train it brought all the blessings of
peace, did not satisfy men whose minds had been in
flamed by wrong and outrage, and did not sufficiently
advert to the circumstances that surrounded the ob
jects at which they aimed. Nevertheless, the Con
vention with France must, in the light of history, be
pronounced wise and beneficial ; and, as such, redound
to the honor of our Envoys.
Among those who most warmly condemned its pro
visions, and disapproved the course of Ellsworth in
assenting to them, were his intimate friends, Wolcott
and Pickering. To the former he thus wrote, from
Havre : —
' You will see our proceedings and their result. Be
assured more could not be done without too great a
sacrifice, and as the reign of Jacobinism is over in
France, and appearances are strong in favor of a gene
ral peace, I hope you will think it was better to sign
a Convention, than to do nothing. Sufferings at sea,
and by a winter's journey through Spain, 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 discharge my official duties.

248 LIFE OF OLIVER ELLSWORTH,
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.' '
Referring to Wolcott's intention to resign his post as
Secretary of the Treasury, and v/hich he subsequently
carried into effect, Ellsworth, in a postscript to bis
letter, thus advises him : —
' You certainly did right not to resign, and you
must not think of resigning, let what changes may
take place, at least till I see you. Though our
country pays badly, it is the only one in the world
worth working for. The happiness it enjoys, and
which it may increase, is so much superior to what
the nations of Europe do, or ever can enjoy, that no
one who is able to preserve and increase that happi
ness ought to quit her service, while he can remain in
it with bread and honor. Of the first, a little suffices
you ; and of the latter, it is not in the power of rapine
or malevolence to deprive you. They cannot do with
out you, and dare not put you out. Remember, my
dear friend, my charge ; keep in till I see you.'
To Pickering, who had been removed from the State
Department, he thus wrote : —
' 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, how
ever done, if ratified, to extricate the United States
from a contest, which it might be as difficult to relin-
' Federal Administrations, vol. ii., p 434, Oct. 16th, 1800.

MISSION TO FRANCE. 249
quish with honor, as to pursue with a prospect of ad
vantage. A partial saving is also made for captured
property ; guards are provided against future abuses,
as well, perhaps, as they can be by stipulations, and
our country is disentangled from its former connections.
As the reign of Jacobinism in France is over, and ap
pearances are strong in favor of a general peace, I
hope you will think it was better to do this, than to
have done nothing.' '
But, to both Wolcott and Pickering, who were men
of strong political antipathies, and had been connected
with the administration of the government while the
difficulties with France were pending, the result of the
negotiation was very distasteful. ' You will read the
treaty, which was signed with France,' thus wrote the
former to the latter, 'with astonishment. I can ac
count for it only on the supposition that the vigor of
Mr. Ellsworth's mind has been enfeebled by sickness.
The Senate are, I understand, much embarrassed,
though they will probably advise a conditional ratifi
cation. It is now certain that the mission has proved
as unfortunate as we considered it at the time it was
instituted. The country must be dishonored by an
unequal treaty, or must incur the risk of having its
dispute with France unsettled, after a general peace
with Europe. The probability of this event during
the present winter is understood to be increasing.' ^
Pickering thus replies : ' The treaty with France, as
you suppose, has excited my astonishment. Davie
and Murray always appeared to me fond of the mis-
' Federal Administrations, vol. ii., p. 463, Oct. 16th, 1800.
'Jhid., p. 461, Dec. 28th, 1800.

250 LIFE OF OLIVER ELLSWORTH.
sion, and I supposed that they had made the treaty;
but, when informed that our friend, our highly re
spected and respectable friend, Mr. E  , was most
urgent for its adoption, my regret equalled my astonish
ment. The fact can be solved only on the ground
which you have suggested.' ' But all this is the lan
guage of feeling. Reason decides differently. A calm,
dispassionate, and comprehensive survey of all the
circumstances attending the negotiation, as well as the
result finally attained by it, will show that the mind
of Ellsworth, unaffected by the distressing malady
that afflicted him, exhibited all its usual vigor, and
accomplished undeniable good for his country.
The Convention with France was submitted to the
Senate on the 15th of December, and finally ratified
by them, with the exception of the second article,
which postponed the former treaties, and the mutual
claims for indemnity, for future negotiation. This
article the Senate desired to have expunged, and an
other article substituted, limiting the duration of the
Convention to eight years. The President accepted
the ratification in this form, though at the same time,
declaring that, had it been unconditional, it would
have been more conformable to his opinion. It was
not, however, until Jefferson's accession to the Presi
dency, that the ratifications were exchanged, Bona
parte assented to the modifications made by the Senate,
with this proviso, ' that by this retrenchment, the two
States renounce their respective pretensions, which
were the object of the 2d article,' Our government
accepted the Convention as thus altered, and on the
21st of December, 1801, it was finally promulgated.
The effect of the condition attached by Napoleon, was
' Federal Administrations, vol. ii., p. 462, Jan. ,3d. 1801.

MISSION TO FRANCE, 251
to relieve France of all liability for the depredations
on our commerce, amounting in the aggregate to over
twenty millions of dollars. Whether our government,
by thus exonerating France from the claims of our
citizens, and for a partial equivalent too, became bound
to pay them, has been a subject of much discussion,
and contrariety of opinion. But it is foreign to our
task to present the arguments employed on either
side.

Vol. IL — 9

252 LIFE OF OLIVER ELLSWORTH.

CHAPTER XIV.
1800-1801.
INCIDENTS OF HIS RESIDENCE IN EUROPE.
During his residence in Paris, Ellsworth became
acquainted with many of the celebrated characters,
who, in one department or other of public life, had
risen to distinction. Under the vigorous sway of the
First Consul, confidence was fast being restored, the
pursuits of business received a fresh impulse, and
general satisfaction pervaded the country. The uni
versal speculation and inquiry awakened by the Revo
lution, however, were still active, and discussions on
religion, and politics continued to agitate the salons of
Paris. In a conversation with Volney, on the subject of
government, the latter read, or described to Ellsworth, a
plan which he had formed for France. He dwelt upon
it with much enthusiasm, as a system calculated to
advance his countrymen to a state of perfection. Ells
worth listened patiently to all the details of the philo
sopher's project, and then remarked, ' There is one
thing, Mr, Volney, for which you have made no pro
vision,' 'And, pray sir, what is that?' 'The sel-

RESIDENCE IN EUROPE, 253
fishness of man,' replied Ellsworth, ' Ah ! said Volney,
'that's the d— 1 on't,"
On another occasion, the conversation turned on
religion, when Volney declared, 'in the most direct
manner, his entire disbelief of the existence of God, a
Providence, and a future state.' Not long after, M,
Volney passed Mr. Ellsworth, at an early hour, in the
Champs Elysees, on horseback, ' I see, friend Volney,'
said Mr, Ellsworth, ' that although you disbelieve the
existence of a God, you are willing to take some pains
to preserve your life and health,' 'Yes,' answered
Volney, ' this horse is my Providence,' ^
Ellsworth became quite ¦ intimate with Talleyrand,
and in a familiar conversation with him, on one occa
sion, respecting American institutions, the celebrated
diplomat said, 'Mr, Ellsworth, how can we establish
among our people republican principles, and free insti
tutions.' 'In the first place, sir,' replied Ellsworth,
' you must establish a judicial tribunal. Let your
judges be some of the first men in the nation ; give
them ample salaries, a hundred thousand francs a year,
if necessary, sufficient to place them above the danger
of bribery ; and set them above the reach of the
Government, The nation will soon find that in that
court all have equal rights and privileges. Lower
courts will easily be established on similar principles,
and other institutions will follow of course,' 'I know^
it, I know it,' replied Talleyrand, 'but Frenchmen,
Mr. Ellsworth, are always in a hurry. They cannot
wait such a slow process.' ^ And if they could, they
might find in the end, that an impartial administration
of law may well consist with the most perfect despo-
' Mr. Wood's MSS. ^ Dwight's Travels, vol. iv., p. 225.
' Mr. Wood's MSS.

254 LIFE OF OLIVER ELLSWORTH.
tism. Bad laws, impartially administered, is no pheno
menon, either in free or despotic States. And such a
system existing in a despotism, we mean the impartial
administration of bad laws, is more likely to destroy
the very vitals of a people than to reform the prin
ciples of their government. An independent judi
ciary, enlisting under the banner of reform, making
common cause against the government from which
they derive their support, is a spectacle which man
kind are not very likely to witness. On the contrary,
they will, until human nature is radically changed,
resist innovation, and endeavor to preserve the whole
condition of things on its original foundation.
On the conclusion of the negotiation, Joseph Bona
parte celebrated the auspicious event by a splendid
fete, at his chateau at Marfontane, about eighteen
miles north of Paris. Oliver Ellsworth, Jr., who had
accompanied his father in the capacity of private
Secretary, thus describes the incidents of this interest-

' We arrived ' he says, ' at the village of Marfontane,
about 2 o'clock, P. M.,' where we found a large number
of the French magistrates assembled at the chateau
of Joseph Bonaparte. The First Consul arrived about
4 o'clock. His entrance into the chateau was an
nounced hy the firing of cannon, and bands of music
playing. During the afternoon, the company amused
themselves by walking in the park, or gardens attached
to the chateau, which are laid out in English style,
affording picturesque views. Behind the chateau is a
canal ; and in front, at a small distance, is a park with
rocky, barren hills, topped by an ancient tower on one
' October 3d, 1800.

RESIDENCE IN EUROPE, 255
side, and a large natural pond, with islands inter
spersed, and fine cultivated hills, here and there, on
the other,
' In the evening, after the final signature of the treaty
by the French and American ministers, it was pre
sented for ratification to the First Consul, upon which
occasion, about 8 in the evening, cannon were fired to
announce the ratification. About 9 o'clock, the guests,
consisting of about 110 persons, were conducted to the
supper tables, spread in three large halls. The prin
cipal, called Union Hall, was superbly decorated and
illuminated, hung with verdant wreaths and numerous
inscriptions commemorating the 4th of July, 1776,
and other periods and places celebrated by important
actions in America during the struggle for independ
ence. Among the inscriptions were frequently seen
the letters F. A,, France and America, with views of
the Federal city, of Philadelphia, and Havre de Grace,
the port from which the American ministers were to
embark. An angel was represented flying with the
olive branch from Havre de Grace to Philadelphia.
' The second hall, called Salle de Washington, was
adorned with the bust of Washington, the French and
American flags side by side.
' The third hall, called Salle de Franhlin, contained
a bust of Doctor Franklin. The design of these decora
tions seemed to be principally the commemoration of
the American Independence and French Liberty, and
that was the spirit of the toasts given at table. The
toast of the French Consul was " The memory of those
who have fallen in the defence of French and Ameri
can Liberty," The toast of the second Consul, Cam-
baceres, was, " The successor of Washington,"
' After supper, about 10 o'clock, there was a splendid
and ingenious display of fire works exhibited in the

256 LIFE OF OLIVER ELLSWORTH.
gardens, the chateau and other buildings being illumi
nated during the evening. Next followed a fine con
cert of music. About 12 o'clock, two short, but inter
esting comedies were performed in the private theatre
within the chateau. The actors and actresses were
the best that Paris could afford. At the conclusion
of one of the plays, a song, complimentary to the
United States, was sung. At the close of the perform
ances, about 2 o'clock. A, M,, some of the company
took their beds, some took a second supper, and some
their exit for Paris at 3 o'clock,
' While walking in the gardens with Mr, Roderer,
son of the French Commissioner, he informed me that
Joseph Bonaparte proposed raising a marble monu
ment, in the garden, in commemoration of the signing
of the treaty between France and the United States,
' From Marfontane, the Envoys and suite took their
departure, on the 4th of October, for Havre de Grace,
and reached St, Denis in the afternoon, whence they
were obliged to send back to Paris for stronger
carriages,' '
They arrived at Havre de Grace on the evening of
the 6th, too late to take passage in the Portsmouth,
which might have sailed that morning, but as the tide
would not allow her to go to sea only once in eight or
ten days, she could not again sail till after the middle
of the month, Mr. Ellsworth's health was so much
impaired, that his physician told him it would be dan
gerous for him to attempt a passage across the ocean
after the middle of October. As no other opportunity
offered until the 19th, though he had gone to Havre
with the intention of embarking, he came to the reso-
'MSS.

RESIDENCE IN EUROPE. 257
lution to spend the winter in the south of France. In
the meantime, he determined to visit England, chiefly
with the view of testing the efficacy of the mineral
waters at Bath. He was carried to that country in
the Portsmouth. His son returned home with Gover
nor Davie, bringing with him his father's resignation
of the office of Chief Justice.
In England, Ellsworth doubtless found himself in a
more congenial atmosphere than in France, He was
familiar with the laws, government, and social insti
tutions of the country. Besides, the tie of language
will always, more or less, bind the American to his
ancestral home. The tone of society, too, and habits
of life, no doubt, were more in unison with his feel
ings, than in Paris, But that he was out of his proper
element in this latter city, as has been suggested,
seems to be a mere supposition, without any adequate
foundation. True, he was ' now advanced in years,
infirm in health, almost unacquainted with the French
language, with little taste for the fine arts ; ' but we
doubt if it can be justly said that he was 'severe and
rigid in his morals and habits of life.' ' Purity of
morals by no means implies austerity; on the con
trary, it may well consist with pleasantry, with social
gaiety and ease. Ellsworth's spirits were naturally
buoyant, and his humor playful and sportive. That he
found sources of amusement and instraction 'in gay
and luxurious Paris,' notwithstanding the disadvan
tages under which he labored from ill-health, and want
of familiarity with the language, may well be imagined.
He had acted a distinguished part on the great theatre
of affairs; he was there brought into contact with
men who had acted a similar part. Surely, in the
' Analectic Magazine, vol. iii., p, 396,
Vol, IL — 17

258 LIFE OF OLIVER ELLSWORTH.
interchange of opinion, in witnessing the scenes of the
Revolution, and an unaccustomed condition of society,
he could not fail to find much to give a pleasing stimu
lus to his mind, and gratify a liberal curiosity.
On his arrival in England, Ellsworth appears to
have proceeded at once to Bath. He soon abandoned
the idea of returning again to France, and remained
in England until his departure for the United States,
in the following spring. In January, he thus Avrote
his friend Rufus King, then resident minister of
the United States at the Court of St. James : —
' I propose going to London about the middle of next
month, and shall probably embark there. And I hope
to be able to carry home your good bargain, for
America will want a new wonder by the time I shall
arrive.' '
In the following letter, he thus playfully refers to
his health, and the defeat of the Federalists : —
' Dear Sir : — .As you have lived long and well
enough to begin to die, you should welcome the gout
in your joints, as the best means to protract the pro
cess, and give lucid intervals. The Bath waters, I
believe, seldom cure this disease, though they mitigate
and shorten its paroxysms; and are, also, of great use
when needed to fix it to the extremities. This effect,
however, is more than they are likely to produce for
me, while my kidneys are weakened by the constant
laceration of sand. They have somewhat increased
my appetite and spirits, and promoted the discharge
of calcareous matter, though I do not perceive that
' MSS. Bath, January 20th, 1801.

RESIDENCE IN EUROPE. 259
they check its formation. I hope we shall next have
better bodies.
So, the anti-Feds, are now to support their own
administration, and take a turn at rolling stones up
hill. Good men will get a breathing spell, and the
credulous will learn to understand the game of out and

Three days later he again wrote King, and as
follows : —
* Dear Sir : —  You do not, surely, mistake the
fear of Jefferson for the gout; because you think, as I do,
that he dare not run the ship aground, nor essentially
deviate from that course which has, hitherto, rendered
her voyage so prosperous.^ His party, also, must sup
port the government while he administers it ; and if
others are consistent, and do the same, the government
may even be consolidated, and acquire new confidence.
It may be well, however, for your letters to guard
against that despondency of sorrie, who, always believ
ing that the government must soon die, will be apt to
say it can never die in better hands.
' Probably, England will block up the Sound ; but
she must let the American trade pass, which will facili
tate to her essential supplies, and avoid grounds of
complaint to the United States, at a time, on every
account, the most improper to furnish them. Perhaps,
you may think it expedient to drop a hint or two to
Lord Grenville on this subject, though the right train
of reflections upon it seem pretty obvious.' ' 
On his arrival in London, Ellsworth was an object
' MS. letter to Rufus King, Jan. 21st, 1801.
2 See ante, chap, x., p. 177. ' MS., January 24th, 1801.

260 LIFE OF OLIVER ELLSWORTH.
of marked attention on the part of the Court,. the
leading public men, as well as the Bench and the bar.
Saj-s Mr. King, in a le,tter to the Secretary of State :—
' Whatever may have been the temper or inclination
of this Government in a different posture of its affairs,
and before the Convention with France was published,
its sentiments in respect to that instrument, and the
distinguished manner in which Mr, Ellsworth has been
received by the Court, have a tendency to show that,
at present, it has no animosit}' or unusual prejudice
against us; on the contrary, those who disseminate its
opinions, encourage the people to bear their distresses
arising from the dearness of bread, by holding forth to
them the abundant harvest of America, and a pros
pect of a great supply from that source,' '
Ellsworth visited Westminster Hall, and ' was taken
to a seat on the King's Bench, where Lord Kenyon —
then rapidly approaching the close of his long tenure,
and in the last year of that old-fashioned green coat,
which Mr. Erskine declared had been bought nearly
a quarter of a century before — was sitting with Judge
Le Blanc and Judge Grose. It w^as, as is said, during
the train of arguments which are reported in the
beginning of the first volume of Mr. East, that the
American Chief Justice visited Westminster Hall.
The famous case of Rex v. Waddington was then be
fore 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. Garrow's chambers,
between the emissaries of the two contending interests,
each seeking to be the first at the door of that eminent

'MS,

RESIDENCE IN EUROPE. 261
advocate, Mr, Law led off for the defendants in the
proceeding in arrest of judgment, and was followed by
Mr. Erskine, Mr. Garrow, and Mr. Scott. Notwith
standing Mr, Jay's previous appearance at the Court
of St. James, and the cotemporaneous presence there
of Mr. King, the fame of their accomplishments had
not reached the King's Bench, whose precincts they
had probably never invaded ; and it was, consequently,
with great curiosity that the elder lawyers, whose
notions of America had been derived from the kid
napping 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 Jus
tice. 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 dis
covered 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 Jaco
bin, two things regarded as equally beyond the limit
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 about
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, ming
ling the distinctive powers of each without that power
of perpetuating them, which the old philosophers
thought only belonged 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

262 LIFE OF OLIVER ELLSWORTH.
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?"
With a natural curiosity, Ellsworth endeavored to
obtain some knowledge of the origin and history of his
family ; and with what result, we have already seen.^
Occasional travel, current politics, and news from
America, served to relieve the tedium of disease, and
preserve the elasticity of his spirits. The censure,
however, bestowed on his negotiation by his friends at
home, seems to have wounded him ; and, especially,
the imputation, that it was the consequence of an im
paired intellect. Thus he wrote Mr. King, from Bath,
on the 26th of February : — •
' My Dear Sir : — I am very sorry to hear that his
Majesty has been deranged, and still more so to learn
that I am supposed to be in the same predicament. I
devoutly hope that a similar imputation will not ex
tend to our government ; but that it will continue to
have respect, though mine is lost in its service. What
more is, at present, to be done in France, will, at least,
fall to the lot of some one not prejudged distracted for
undertaking it.
'It is strange, that after your letter to the Secretary
of State, (of which, if you see no impropriety, I hope
you will favor me with a copy, or an extract,) it could
have been supposed that G. B. [Great Britain], had a
right to complain,; and even without that letter it
ought to have been sufficient, that by an uncontested
rule of construction, there is implied and uhderstood a
saving for the operation of prior treaties.'
' American State Trials, Preliminary Notes. "Ante. chap, i,
* The extract thus asked for, is the one, doubtless, that we have
printed, Ante, p. 260. Mr. JeflFerson was among those who, errone-

RESIDENCE IN EUROPE. 263
' The 3d article, including a restoration of the fri
gate, had, as you know, its real reciprocity in that part
of the 4th which secured the restoration of about
forty valuable merchantmen, chiefly letters of marque,
on such proofs of ownership as they were known to be
furnished with. If the rights of war had attached,
restoring the latter was a much greater sacrifice than
that of the former ; and if there had not been war
there was nothing humiliating nor unusual in the res
torations on either side.
' The 2d article was harmless; and by admitting the
inoperation of the former treaties, silenced a claim
which would have been continued, and might have
become embarrassing.
' As to the provisions respecting future captures and
commerce, we might be satisfied with them quite as
long as France, by observing, would avoid an occasion
to revise them. To have expressed a limitation of
years to the Convention was truly compatible with the
idea of a further and definitive treaty, embracing the
claims of indemnity which we were not at liberty to
abandon. But I will not trouble you with remarks as
obvious as they are now become useless.
Very truly yours.' '
Though the Convention with France was submitted
to the Senate on the 15th of December, that body did
not finally act upon it until the third of the following
February. Ellsworth, naturally, was anxious to learn
the result, which, from various intimations, seemed to
be involved in a good deal of doubt.
ously, thought the Convention with France would ' endanger the
compromitting us with Great Britain.'
'MS.

264 LIFE OF OLIVER ELLSWORTH,
' I am truly thankful, my dear sir,' thus he wrote
King on the 3d of March, ' for your package of this
day, as I shall be for every scrap of American intelli
gence, till we know the fate of two questions, both too
important for passion to decide. There is now more
hope of the Convention than from the Boston account.
It was not a copy of that instrument that I enclosed
to General Hamilton ; but a few observations respect
ing it, intended to guard against surprise. It is, indeed,
strange that the Secretary of State should omit to
acknowledge your interesting letter, and that there
should be so much evidence of the Senate's being un
acquainted with its import. I lament, sir, as much as
you can the embarrassments of this country as well as
that they are not better understood in our own.' '
In the course of a few days intelligence arrived that
the Convention with France had been ratified, with
the exception of the 2d article. This modification,
Ellsworth regarded as impairing the value of the nego
tiation, ' The exception of the 2d article,' he wrote
King on the 17th of March, ' makes the instrument
rather worse for us, as it leaves more room for France
to claim anteriority, in the point of interference. And,
I think it most likely that she will accede to the alter
ation.' ^
Five days later, and after hearing the result of the
protracted contest between Jefferson and Burr, in the
House of Representatives, he thus wrote Mr. King: —
' So, then, my dear sir, after thirty trials, fortune
has given us the best of a bad bargain. I think
the Feds, have acquired less reputation by the con-
'MS. 'MS.

RESIDENCE IN EUROPE. 265
test than the public would have lost had they sue
ceeded 
' I have just engaged a passage from Bristol, not as
I for some time expected to New York, but in the
Nancy, Capt. Orn, for Boston, who has been detained
a week by the weather, and must now wait till the
27th or 28th, for a spring tide. I cannot, therefore,
you see, go to London, though I have certainly more
desire to go than while it was generally supposed that
the Convention with France was rejected ; and while,
of course, it must have been supposed that the Ameri
can Negotiators had disregarded their instructions.
Your negotiation about the debts probably does not
progress much at present, though I hope there yet con
tinues a prospect of its having a favorable issue. Pray,
inform me how far, according to your and Mr. Wil
liams' account, the French have executed the 4th arti
cle of the Convention.' '
On the 29th he again wrote King, and from Bristol
where he was now waiting to embark.
' Your seasonable and well-directed discourses with
Mr. Otto, could scarcely, my dear sir, fail of being use
ful. It was certainly time for G. B. to disembarrass
our Spanish commerce, an^ if she only pursues her
own interest, she will be more cautious, especially at
present, how she checks our intercourse with any
nation, either under pretext of blockades, or by abus
ing the right of search. It is, doubtless, time, also,
that her Vice Admiralty Courts should be so reformed
as to be more competent, and more disposed to do their
duty. ' MSS., March 22d, 1801.

266 LIFE OF OLIVER ELLSWORTH.
' I know not when, or by whom you will be suc
ceeded ; but am confident that it will be by no one till
you request it, which must not be till our differences
with this country are settled, and should not be till
our treaty with her has been received. I pray Mrs.
King to accept my best wishes, and am, my dear sir,
with much obligation, and sensibility.
Your affectionate friend.' '
Ellsworth had now been in the service of his coun
try, in high and responsible posts, more than a quarter
of a century. With health fatally impaired, he now
returned home, with the intention to retire altogether
from public life. 'MSS.

MEMBER OF GOVERNOR'S COUNCIL. 267

CHAPTER XV.
1801-1807.
MEMBER OF THE GOVERNOR'S COUNCIL.
From the Bath waters Ellsworth had derived no
permanent benefit, although the more distressing
symptoms of his disease were alleviated. The voyage
home was a severe trial to his impaired constitution.
The change in his appearance was obvious and pain
ful. To his family it was truly affecting. They were
looking out for his return home with eager expecta
tion. His carriage had been sent forward to meet him.
' At his beautiful mansion in Windsor all was joyful
expectancy. His children listened to the echo of every
approaching wheel, and saddened at perceiving that it
had not brought their father. At length his own car
riage was, indeed, descried. The whole family group
hastened forth to welcome him. Wife, and son, and
daughter, and servant born in his house, were there. It
was a thrilling moment. The profound Statesman,
whose wealth and fame had been purchased by no
sacrifice of virtue, wearied with those services which
had rendered his name illustrious, was coming to share
the repose of his native shades, and to be parted from
them no more. He alighted from his carriage. But
he spoke not to his wife. He returned not the em-

268 LIFE OF OLIVER ELLSWORTH.
brace of his children. He glanced not even at his
twin boys, the youngest of that beloved circle. Lean
ing over his gate, and covering his face, he first silently
breathed a prayer of gratitude to that Being who gave
him once more to see his habitation in safety and in
peace. He took not the full cup of joy that was
pressed to his lips until it had been hallowed by devo
tion.' '
' The lingering disease and ultimate death of a favor
ite son, a youth of much promise, which took place
about this time, contributed, together with the infirm
and precarious state of his own health, to depress his
spirits as much as a mind naturally so firm and vigor
ous could be affected by external circumstances.' ^
The son here referred to was Oliver Ellsworth, Jr.,
who had accompanied his father to Europe in the capa
city of Private Secretary. His health was naturally
frail, and had been further impaired by severe appli
cation to his studies. His voyage, and residence in
Europe, had failed to benefit him, and soon after his
return to this country, he went to the West Indies to
try the efficacy of a more genial climate. But his dis
ease had progressed too f\ir for effectual relief, and his
death soon followed.
Although Ellsworth had determined to pass his re
maining life in retirement, yet, when in the year fol
lowing his return from Europe, he was elected a
member of the Governor's Council ; ' he did not refuse
the call of public duty, and continued in this station the
remainder of his life, faithfully attending to the public
' National Portrait Gallery, vol, iv.. Art. 'Ellsworth.'
"Analectic Magazine, vol. iii., p. 397,

MEMBER OF governor's COUNCIL, 269
business in spite of the attacks of disease, and the pres
sure of domestic affliction  His seat in the
Council made him, ex officio, a member of the Board
of Fellows of Yale College ; and he entered very zeal
ously into all the concerns and interests of that highly
respectable and important institution. His official
duties were the/ more laborious, because, during the
time in which he held a seat in the Council, that body
exercised the double powers of a constituent branch
of the Legislature, and of the final Court of Appeals
from all inferior State jurisdictions. He was par
ticularly attentive to this latter department of his
duty,' '
The decisions of the Council, acting as a Supreme
Court of Errors, are collected in Day's Connecticut
Reports, The individual opinions of the members,
however, are not reported ; and, consequently, we are
unable to determine the precise share Ellsworth had
in the judgments of the court. That his influence
on the minds of his brethren was as controlling as
eighteen years before, when he was a member of the
same court, may naturally be presumed. For, in ad
dition to the weight of acknowledged talents, he now
united the authority of age, and long and distinguished
public service.
In May, 1807, the Legislature of Connecticut re
modeled their judiciary. In place of the existing
system, they organized three Circuit Courts, and
formed a new Court of Appeals. In order, it is said,
to give greater dignity to the system thus established,
Ellsworth was appointed Chief Justice of the State.
He accepted the appointment ; but before the adjourn-
' Analectic Magazine, vol. iii., p. 397.

270 LIFE OF OLIVER ELLSWORTH.
ment of the Legislature, who, in thus honoring him
did honor to themselves, and the State they repre
sented, a severe attack of his painful disease warned
him that his life was approaching its closfe and parting.
Hence, this last honorable testimonial to his virtues
and abilities, from the representatives of a State he
loved and had served, he felt compelled to decline.

CONCLUSION. 271

CHAPTER XVL
1807.
CONCLUSION.
Ellsworth's home, on the banks of the Connecticut,
at Windsor, afforded him a delightful retreat from the
cares of public life. He was fond of the country;
was well acquainted with agriculture, practically and
scientifically, and derived great satisfaction in attend
ing to the cultivation of his farm. 'His leisure was
chiefly passed in agricultural occupations. During
this period he published, in one of the Connecticut
journals, a series of brief essays on rural affairs, some
of which contained a very whimsical mixture of agri
culture and politics.' ' Before the value of gypsum
was generally known in this country, he called the at
tention of the agricultural community, through the
medium of these essays, to its importance. But his Con
necticut neighbors, it is said, held 'book knowledge,'
and the speculations of a jurist and statesman upon
such topics, at rather a cheap rate. This fact, how
ever, does not detract from the value of his contribu
tions to the current literature of agriculture.
His style of living was simple and unostentatious ;
'Analectic Magazine, vol. iii., p. 398.

272 LIFE OF OLIVER ELLSWORTH.
his intercourse with his neighbors frank and easy.
They found in him, at all times, a safe counsellor and
friend. In the affairs of individuals, the church, the
parish, the town, and State, his advice was freely
given. In politics, he manifested great interest to the
last, and frequently entered into their details 'with
more warmth, perhaps, than became his age and char
acter.' ' He was an earnest believer in Christianity,
and a constant attendant on public worship. 'His
example before his household was calculated to im
press the importance of that religion which he revered
and loved. Guests occasionally present at their morn
ing and evening devotions were solemnized by the
fervor and sublimity of his prayers. He inculcated on
all under his roof a reverence for the Sabbath ; and was
in the habit of gathering them around him, and read
ing them a sermon, in addition to the public worship
of the day. During the changes of an eventful hfe,
the fluctuations of revolution, the interruptions inci
dental to high office, the gaiety of the Court of France,
and the desultory habits imposed by foreign travel, he
never overlooked the sacred obligations of the Sabbath,
or shunned to give infidelity a reason for the hope
that was in him. As he approached the close of life,
the inspired volume, which had from youth been his
guide and counsellor, became more and more dear.
Like a new book, it revealed to him unknown trea
sures  Day and night, while he stood on the
verge of a higher existence, did his soul, disengaging
itself from earthly things, search the Scriptures of
truth with solemnity and delight.' ^ It may be added
that books of theology, especially Dr. Lardner's, en-

' Analectic Magazine, vol. iii., p. 398.
"National Portrait Gallery, vol. iv.. Art, 'Ellsworth,'

CONCLUSION. 273
gaged his attention in this period of comparative lei
sure ; and that on points of faith, his belief, for the
most part, conformed to the prevailing New England
standard. In all his habits and tastes, there was an unaffected
simplicity. He often visited a mineral spring in Suf-
field, Connecticut, for the benefit of his health. On
one occasion, the wife of the proprietor of the Springs
declined his application for board, saying, that she
' could not entertain a great man like him in a suitable
manner.' ' But, madam,' said he, ' do you not have
bread.' 'Oh, yes sir, and milk, too.' 'Very well,' was
the reply, ' that is all the food I need.' The fears of
the good woman were dissipated, and she received him
willingly. In his rambles, while at Suffield, 'he often seated
himself by the stone wall on the common, where the
children of the neighborhood soon gathered around
him, first from curiosity, and afterwards manifested
their interest in him by the regularity of their attend
ance. The occasion was improved by imparting in
struction, and he smilingly remarked to my father, in
reply to a suggestion of his, ' Mr. Leavitt, time is not
lost while I can teach these children something which
will always be remembered by them.' '
Upon every recurrence of the paroxysms that char
acterized his distressing malady, the health of Ells
worth grew more and more feeble. Though he expe
rienced flattering intervals of relief, he could have but
little hope of ultimate recovery. His sufferings in the
latter stages of his disease were very great, and ' dur
ing his last sickness he was at times deprived of his
reason . In his lucid intervals, the observations which
'MS. letter.
Vol. IL — 18

274 LIFE OF OLIVER ELLSWORTH.
he made, and the sentiments which he expressed, con
cerning the nature, excellence, and rewards of Chris
tianity, were declared by those who were present, not
only to have been pious, ardent, and sublime, but
wonderful.' '
He died on the 26th of November, 1807, in the
sixty-third year of his age. His funeral took place
on the 28th, and his remains were followed to the
grave by a numerous concourse of his fellow-citizens,
who had come from all the surrounding country to
pay the last tribute of respect to their deceased coun
tryman. He was buried in the cemetery near his ac
customed place of worship, on the north bank of the
Farmington river, where a neat monument, with an ap
propriate inscription, has been erected to his memory.
'Oliver Ellsworth,' says Dr. Dwight, 'was formed to
be a great man.' His person was tall, dignified, and
commanding. Without haughtiness, there was yet in
his manners and aspect, something that everywhere,
and at all times, compelled respect. The prevailing
expression of his countenance was grave and serious.
His forehead was high and broad ; his eyes blue and
penetrating. His features were regular, and well-pro
portioned, but plain withal. The portrait by Trum
bull, it is said, gives a pretty accurate idea of his per
sonal appearance. His social, moral, and intellectual
qualities were of a character to challenge respect and
esteem. No man was more modest and unassuming;
more 'just, frank, kind, and obliging in his deport
ment.' He was eminently social in his disposition, and
mingled freely with all classes on an easy and friendly
footing. The turn of his mind was practical, and this,
together with the circumstances of his early years, had
' Dr. Dwight.

CONCLUSION. 275
rendered him familiar with the details and ordinary
business of life. At the south, in the court-yard of a
public house, when the stage-coach had sustained some
injury, the inquiry was once made, ' who is that gen
tlemen who understands everything, and is eloquent
about a coach-wheel ? ' ' The Chief Justice of the
United States,' was the reply.' In the administration
of his private affairs, he was methodical, careful, and
economical ; but, though his prudence in pecuniary
matters was somewhat severe, he, nevertheless, gave
liberally to any useful or benevolent object.
He was an uncommonly agreeable man,^ and the
delight of the social circle. His conversational talents,
as we have elsewhere remarked, were of a high order;
he was sprightly, engaging, and instructive. If par
ticularly interested in the conversation, he became
animated, his countenance beamed with intelligence,
and his manner and language were eloquent and im
pressive. If, at the tea table, at such a time, he would
take cup after cup of his favorite beverage, wholly
unconscious of the number, until his attention was
called to it.
His high moral qualities were universally acknow
ledged ; the shafts of calumny were never aimed at
him. ' In the elevated course assigned him by his
country, he moved not only secure from the lip of
slander, and without a blot upon his fair fame, but
with that true dignity which always accompanies real
greatness.' ^ The sincerity of his principles no man
doubted. ' The purity and excellence of his charac
ter,' says Dr. Dwight, ' are rare in any station ; and in
'National Portrait Gallery, vol. iv., Art. 'Ellsworth.'
^ Dr. Dwight. See Dwight's Travels, vol. i, p. 301-304.
' American Register for 1807, p. 96.

276 LIFE OF OLIVER ELLSWORTH.
the higher walks of life are almost unknown.' ' Truth
and justice were essential attributes of his character.
The endowments of his mind were of a sound and
valuable sort. Others have had more brilliant quali
ties; few more practically useful ones. He had not
the glance of genius; he did not descend to his sub
ject from above, but rose to it by regular grada
tions of logic. His habits of thought were slow and
laborious. Inference, not intuition, distinguished the
operations of his mind. His subject absorbed and
pre-occupied him. He was not addicted to books ;
had little sense of the beautiful, and not much crea
tive power, ' He was formed by nature more for the
discharge of active duties, than for contemplative
study or abstract science.' But, for strength of reason,
for sagacity, wisdom, and sound, good sense in the con
duct of affairs; for moderation of temper, and general
ability, it may be doubted, if New England has yet
produced his superior. '- Dwight's Travels, supra.

THE LIFE

OF

JOHN MAESHALL

(277)

THE

LIFE OF JOHN MARSHALL.

CHAPTER L

HIS ANCESTRy,

John Marshall, the grandfather of Chief Justice
Marshall, was a native of Wales, and emigrated to
America about the year 1730. He settled in West
moreland County, which, not inaptly, has been termed
' the Athens of Virginia' — Washington, Monroe, and
the Lees having been born there. Here he married
Elizabeth Markham, a native of England, who bore
him four sons and five daughters.
John Marshall was a planter, but does not appear to
have been a very prosperous one. His estate, called
' Forest,' though consisting of several hundred acres,
was comparatively unproductive. It was inherited by
his eldest son, Thomas, who subsequently removed to
Fauquier County. He settled at a place called Ger
mantown, and resided there for several years.
Thomas Marshall and Washington were born in the
same neighborhood, were companions in boyhood, and
friends ever after. Both became practical surveyors,
and in the pursuits of a common profession, and after-
(279)

280 life of JOHN MARSHALL.
wardsj in the service of a common country, their friend
ship and association were preserved. On the outbreak
of the Revolution, Thomas Marshall was placed in
command of the third Virginia regiment, serving as
Continental troops, and in that capacity performed
arduous and meritorious service. He was at Trenton
and Brandywine, and in the latter battle bore a con
spicuous part.
The natural abilities of Thomas Marshall were un
commonly vigorous, and were improved, not only by
observation and reflection, but by extensive acquaint
ance with books. Though his means were limited,
and his early advantages of education slight, he had
purchased and made himself familiar with most of the
standard works of English literature. By his neigh
bors and acquaintance he was held in the highest esti
mation for sound sense, and general ability. By his
children he was equally beloved and admired. ' I have
myself,' says Judge Story, ' often heard the Chief Jus
tice speak of him in terms of the deepest affection and
reverence. I do not here refer to his public remarks;
but to his private and familiar conversations with me,
when there was no other listener. Indeed, he never
named his father, on these occasions, without dwell
ing on his character with a fond and winning enthu
siasm. It was a theme on which he broke out with
a spontaneous eloquence; and, in the spirit of the
most persuasive confidence, he would delight to expa
tiate upon his virtues and talents. "My father," (would
he say, with kindled feelings and emphasis,) "my
father was a far abler man than any of his sons. To
him I owe the solid foundation of all my own success
in life."" ' Discourse upon the Life, &c., of John Marshall.

. HIS ANCESTRY. 281
About the time of his removal from Westmoreland
to Fauquier County, Thomas Marshall married Miss
Mary Keith, respecting whom we have been able to
obtain only one or two trifling particulars. If, how
ever, the character and talents of her children may be
taken as the reflection of her own, she must have
possessed great merit and understanding.

282 life of JOHN MARSHALL.

CHAPTER IL
1755 — 1775.
HIS BIRTH AND EDUCATION.
John Marshall, the eldest of fifteen children, was
the son of Thomas and Mary Marshall, and born at a
locality called Germantown, in Fauquier County, Vir
ginia, on the 24th day of September, 1755. When he
was quite young, the family moved to Goose's Creek,
under Manassas Gap, near the Blue Ridge, and still
later to Oak Hill, where they were living at the com
mencement of the Revolution.' His father, a planter
and surveyor like his friend Colonel Washington, led
a very retired life, owing no doubt to the narrowness
of his fortune, and the studiousness of his disposition.
The region of country, too, in which he lived, was very
sparsely settled ; tiiere were no schools in the neigh
borhood, and the duty of instructing his children
chiefly devolved on him. How cheerfully and faith
fully he performed it, the remark of the Chief Justice,
which we have already quoted, that to his father he
Owed the solid foundation of all his success in life, is
an ample testimony.
To him he was indebted for that love of literature,
which continued fresh and warm down to the very
closing scenes of his life. ' At the age of twelve [he]
' Howe's Virginia Historical Collections, page 262.

HIS BIRTH AND EDUCATION. 283
had transcribed the whole of Pope's Essay on Man,
and some of his moral essays, and had committed to
memory many of the most interesting passages of that
distinguished poet. The love of poetry, thus awakened
in his warm and vigorous mind, soon exerted a com
manding influence over it. He became enamored of
the classical writers of the old English school, of Mil
ton, and Shakspeare, and Dryden, and Pope; and was
instructed by their solid sense, and beautiful imagery.
In the enthusiasm of youth, he often indulged himself
in poetical compositions, and freely gave up his leisure
hours to those dreamings with the muses, which (say
what we may) constitute with many the purest source
of pleasure in the gayer scenes of life, and the sweetest
consolation in the hours of adversity.' '
In study, in healthful sports, and amidst the genial
and virtuous influence of his home, the early boyhood
of John Marshall passed happily away. He was par
ticularly fortunate in being reared among numerous
brothers and sisters. It has been often remarked that
children growing up, under such circumstances, are
the more apt, on that account, to make good men and
women. They constitute a little community among
themselves, and learn betimes that respect for social
rights and duties, that mutual accommodation and for
bearance, which fit them for useful and pleasant asso
ciation in those corporate communities in which their
lives are to be passed.
At fourteen, he was sent to Westmoreland, a hun
dred miles away, where he commenced the study of
Latin. His teacher was the Rev, Mr, Campbell, a
very respectable clergyman, with whom he remained
a year. One of his fellow-students, a lad of far iufe-
' Discourse ofl the Life, &c., of John Marshall, by Joseph Story.

284 life of JOHN MARSHALL.
rior capacity, but who afterwards became President of
the United States, was James Monroe. On bis return
home, which was about the time of his father's remo
val to Oak Hill, young Marshall continued the study
of Latin another year, under the Rev. Mr. Thompson,
a Scotch clergyman, who had just settled in the parish,
and resided in his father's family. This was all the
aid he ever received from teachers in his study of the
classics. With Mr. Thompson he had begun the read
ing of Horace and Livy ; but how far his own unas^
sisted efforts subsequently carried him, I am unable to
say. As his stock of classical lOre, however, was never
very extensive, we may, perhaps, presume that, in the
absence of classical tuition, he turned with more ardor
to the study of English literature. Here he had the
assistance and .sympathy of his father, who was not
only the kind and considerate parent, but the friend
and companion of his son. 'My father,' thus he wrote
long after, ' superintended the English part of my
education, and to his care I am indebted for any thing
valuable which I may have acquired in my youth.
He was my only intelligent companion, and was both
a watchful parent, and an affectionate, instructive
friend. The young men within my reach were entirely
uncultivated ; and the time passed with them was de
voted to hardy, athletic exercises.'
But not to study alone, nor to the companionship
of such a father, is the eminence of John Marshall to
be solely attributed. In addition to the native vigor
of his faculties, much was owing to the circumstances
amid which he grew up. In a thinly populated region
of country, he had, necessarily, but little society, his
mind was thrown upon itself, and his lonely meditar
tions created and confirmed habits of thought and re
flection. The wild and mountainous scenery, too, that

HIS BIRTH AND EDUCATION. 285
surrounded him, could not fail to affect a mind like
his; reverent, and impressible to the varied charms of
nature. The simple style of living, too, then common
in that part of Virginia, the easy and friendly footing
on which all social intercourse was conducted, were not
lost on Marshall. Both were afterwards perceptible
in his characteristic simplicity, and ready sympathy
with humanity, in all its relations, without regard to
rank or fortune, which, with his other qualities, so
endeared him to his countrymen. 'He ever recurred
with fondness to that primitive mode of life, when he
partook, with a keen relish, balm tea and mush, and
when the females used thorns for pins.'' He was fond
of athletic exercises, and, naturally enough in a region
abounding in game, of field sports also. These tastes
and habits gave him a firm, robust constitution, and,
even in his years, he exhibited the vigor and fresh
ness of youth.
Having selected the law as his future profession, he
began the study of it about the time he was entering
on the eighteenth year of his age. He had not, how
ever, made much progress in the perusal of Black-
stone's Commentaries, before the threatening aspect
of public affairs withdrew and concentrated his ener
gies upon very different pursuits. In the next chapter,
we shall view the future Chief Justice as a soldier.
' Howe's Virginia Historical Collections, page 263.

286 LIFE OF JOHN MARSHALL.

CHAPTER III.
1775-1780.
HIS MILITARY SERVICES.
Times of Revolution are necessarily times of great
intellectual activity. All minds are alert, anxious, and
inquiring. Whether the cause of Revolution be politi
cal or religious, discussion and investigation are pre
supposed. Mankind are not apt to change existing
establishments without very thorough conviction of
the necessity of such change. And that conviction
is not wrought in a day. Fixed habits, inherited
attachments, interest in the past, and hopes in the
future, all plead against innovation. When, there
fore, all the various considerations that urge men to
submit to the present order of things are overpowered
by the weight of opposing considerations, it may
readily be supposed that, in the conflict that has taken
place, the minds of men have been thoroughly aroused,
abstracted from ordinary pursuits, and fixed on objects
of a larger and more comprehensive character.
It was in the midst of the fermentation and excite
ment immediately preceding actual hostilities between
Great Britain and her American colonies, that John
Marshall received his first lessons in practical politics.
His father was a staunch Whig, who believed that the
pretensions of Great Britain, if submitted to, would

HIS MILITARY SERVICES, 287
result in the political enslavement of himself and pos
terity. The son could hardly fail to catch the tone
and partake the sentiments of his father. But, what
ever his natural bias, yet not blindly, nor with unrear-
soning facility, did he espouse" the prevailing opinions.
He investigated the grounds of the controversy. The
various political essays of the day he read attentively.
Full of youthful ardor, and looking forward to the
time when discussion would give way to arms, he en
rolled himself in a company of volunteers, in order to
learn something of the rudiments of military science.
In the spring of 1775 he was appointed Lieutenant in
a militia company of the neighborhood, and, soon after,
first Lieutenant in a company of minute-men. In this
latter capacity, as we shall presently see, he was called
into active service.
On the 20th of April, Lord Dunmore, in consequence
of the hostile attitude of the Virginians, had the powder
in the magazine at Williamsburg removed on board
a man-of-war. This proceeding produced a feeling of
great exasperation throughout Virginia, and was in
creased by the threat of Dunmore that he would fire
Williamsburg, and proclaim freedom to the slaves, if
injury should befall himself, or the officers who had
acted in the execution of his orders. It was in the
midst of the prevailing excitement, when the whole
body of the people were fully aroused, that news arrived
of the action at Lexington. This startling intelligence
increased the ferment. An appeal to arms and the
God of Hosts seemed now to be inevitable. It is at
this critical moment that we have our first view of
John Marshall. It is now that we get our first dis
tinct impression of his youthful appearance. His com
pany had assembled, according to previous notice,
about ten miles from his father's residence. A kins-

288 LIFE OF JOHN MARSHALL.
man and cotemporary, who was present at their place
of meeting, has thus described him as he then and
there appeared : —
' It was in May, 1775. He was then a youth of
nineteen. The muster-field was some twenty miles
distant from the Court-house, and in a section of coun
try 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 ascer
taining the truth, for not a newspaper was printed
nearer than Williamsburg, nor was one taken within
the bounds of the militia company, though large. The
Captain had called the company together, and was ex
pected to attend, but did not. John Marshall had been
appointed Lieutenant to it. His father had formerly
commanded it. Soon after Lieutenant Marshall's ap
pearance 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 Cap
tain would not be there, and that he had been ap
pointed Lieutenant instead of abetter; 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 Massachu
setts, between the British and Americans, in which
the Americans were victorious, but that more fight
ing 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

HIS MILITARY SERVICES. 289
put the men in line, and their fugleman presented
himself in front to the righ t.
' His figure,' says his venerable kinsman, ' I have
now before me. He was about six feet high, straight
and rather slender, of dark complexion, showing little
if any rosy red, yet good health, the outline of the face
nearly a circle, and within that, eyes dark to black
ness, 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 fea
tures 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 the presence of the com
pany, before he required the men to imitate him ; and
then proceeded to exercise them, with the most per
fect temper. Never did man possess a temper more
happy, or, if otherwise, more subdued or better disci
plined. ' 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
Vol. IL — 19

290 LIFE OF JOHN MARSHALL.
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.' '
Thus and so was John Marshall, in the freshness of
youth, and thus, in the main, did he continue through
life. The same simplicity, naturalness, good nature,
happy temperament, open, manly, and sincere disposi
tion, were at all times remarked, and secured to him
the unaffected love of his countrymen. They could
admire the exhibition of his pre-eminent talents, but
qualities like these were needed to attract and fix the
affection of their hearts.
The occurrences to the northward, and the hostile
attitude of parties at home, the liability and expecta
tion of being called into immediate service, induced
the volunteers of Culpepper, Orange, and Fauquier
Counties, to constitute themselves a regiment of
minute men. This was, doubtless, the organization
to which young Marshall referred, in his address to the
militia, as about to be formed. They were the first
minute men raised in Virginia, and numbered about
three hundred and fifty men. Lawrence Taliaferro
was chosen their Colonel, Edward Stevens, Lieute
nant-Colonel, and Thomas Marshall, the father of the
Chief Justice, Major. The future Chief Justice him
self received the appointment of first Lieutenant in
one of the companies of this regiment.
' Eulogy on John Marshall by Horace Binney, pp. 22-24.

HIS MILITARY SERVICES. 291
These were the citizen soldiery, who, John Ran
dolph said in the Senate of the United States, in one
of his discursive speeches, ' were raised in a minute,
armed in a minute, marched in a minute, fought in a
minute, and vanquished in a minute.' Their appear
ance was calculated to strike terror into the hearts of
an enemy. They were dressed in green hunting-shirts,
'home-spun, home-woven, and home-made,' with the
words, ' Liberty or Death,' in large white letters, on
their bosoms. ' They wore in their hats buck-tails,
and in their belts, tomahawks and scalping-knives.
Their savage, warlike appearance, excited the terror
of the inhabitants as they marched through the coun
try to Williamsburg.' ' Lord Dunmore told his troops
before the action at the Great Bridge, which we shall
presently describe, that if they fell into the hands of
the shirt-men, they would be scalped ; an apprehen
sion, it is said, which induced several of them to pre
fer death to captivity. To the honor of the shirt-men,
however, it should be observed, that they treated the
British prisoners with great kindness — a kindness
which was felt and gratefully acknowdedged.
Early in June, Lord Dunmore, apprehensive of his
personal safety, fled on board a man-of-w^ar. With
the British shipping, off the coast of Virginia, at his
command, he possessed the means of annoying the Vir
ginians, without being able to strike any very effective
blow. Through the summer and autumn of 1775,
both parties were kept upon the alert, but nothing of
a very serious character occurred. At length, on the
7th of November, Dunmore proclaimed martial law,
denounced as traitors all who were capable of bearing
arms and did not resort to His Majesty's standard,
' Howe's Virginia Historical Collections, p. 238.

292 LIFE OF JOHN MARSHALL.
and offered freedom to all slaves 'appertaining to
rebels' who would join His Majesty's troops. He set
up his standard in . Norfolk and Princess Anne, pre
scribed an oath of allegiance, and, from among the
Loyalists, received a considerable accession to his
force. At Suffolk, eighteen miles south-west of Norfolk,
the Virginians had collected provisions for their troops.
To capture these provisions was an object of import
ance to Lord Dunmore. To prevent it, was an object
of equal importance to the Virginians. The Provi
sional Government had kept a steady eye on his lord
ship's movements, and clearly perceived the danger of
permitting him to retain a foothold at Norfolk. They
despatched Colonel Woodford, with a detachment of
minute men, including Marshall's company, to protect
the provisions at Suffolk, and relieve Norfolk from the
presence of the enemy. The engagement which we
are now to relate, was the result.
About twelve miles from Norfolk, on the only prac
ticable road to Suffolk, was the Great Bridge, as it was
termed, and built over the southern branch of Ehzar
beth River. Here Dunmore, apprised of Woodford's
movements, erected a stockade fort, and supplied it
with a numerous artillery. The position was a strong
one, surrounded on all sides by water and marshes,
and only accessible by a long dike. This was com
manded by his cannon, as well as the bridge and the
causeway on the other side, over which the Americans
must pass. The Governor's troops, however, were not
equal to his intrenchments. They consisted of two
hundred regulars, a corps of Norfolk Loyalists, and 'a
shapeless mass of varlets of every color.' '
' Botta.

HIS MILITARY SERVICES. 293
When Woodford arrived at the bridge, he threw up
a breastwork at the extremity of the causeway on his
side. Neither party seemed disposed to begin the
attack. Several days passed, without any serious
movement on either side. In numbers and character,
the Virginians were much superior to the enemy.
True, for the most part, they were unused to warfare,
but being chiefly young men, they were full of enthu
siasm, and ready for action. It was here and now,
that Lieutenant Marshall had his first experience of
war. In the action which ensued, he is said to have
borne an honorable part.
The enemy were induced to begin the attack by
stratagem. A servant of Major Marshall's, after being
instructed in the part he was to play, deserted to the
enemy, and reported that there were nOt at the bridge
more than three hundred s7iirt-men. This tale Lord
Dunmore believed, and accordingly despatched his
regular troops, together with about three hundred
blacks and Loyalists, to drive the Virginians from
their position. The attack was made on the 9th of
December. Captain Fordyce, a brave and accom
plished officer, led the attacking party. As they ad
vanced along the causeway to storm the breastwork,
they were exposed to the deadly fire of the American
riflemen. The effect was overwhelming. The action
did not last more than twenty or thirty minutes; but
the enemy were totally routed. Lord Dunmore aban
doned his intrenchments, spiked his cannon, and again
fled to his ships.
On the fourteenth, the Americans entered Norfolk.
Here Marshall remained with his corps, until the town
was bombarded and burned by the British shipping,
on the 1st of January following.
In July, 1776, he was appointed first Lieutenant in

294 LIFE OF JOHN MARSHALL.
tlie eleventh Virginia regiment, and, in the following
winter, joined the army in camp at Morristown. That
army, notwithstanding the successes at Trenton and
Princeton, was in the most wretched condition, both
as to numbers and materiel. Washington's letter to
the Governor and Council of Connecticut, describing
the actual state of affairs, is said to have drawn tears
from those who heard it read.' 'Nothing but a good
face and false appearances,' he subsequently wrote,
' have enabled us hitherto to deceive the enemy re
specting our strength.'^
It was the fortune of young Marshall to follow the
standard of his country in the gloomiest period of the
war; a period, when patient endurance of suffering
was the highest quality the soldier could display. In
May, when the campaign of 1777 was about opening,
he received the appointment of Captain. In this sub
ordinate post he was not in a position to attract the
eye of the historian, and, consequently, we are with
out any detailed account of his actual conduct in the
field. Suffice it to say, therefore, that he was engaged
in the action at Iron Hill, which preluded the Battle
of Brandywine, when the corps to which he was
attached did memorable service. Indeed, the Virginia
troops behaved, in this battle, with the greatest gal
lantry, and merited universal praise. But the victory,
or the results of victory, remained with the British.
In the course of a few days. General Howe made his
triumphal entry into Philadelphia.^
Then followed the Battle of Germantown,'' a battle
which would have resulted in favor of the Americans,
had not victory been snatched from their grasp, in
' Gordon, vol. ii., p. 170. ^ Ibid., p. 198.
» September 26th, 1777. " October 3d, 1777.

HIS MILITARY SERVICES. 295
the manner thus described by one of the American
Generals. 'At Germantown,' he says, ' fortune smiled
on our arms for hours. The enemy were broke, dis
persed, and flying on all quarters ; we were in posses
sion of their whole encampment, together with their
artillery park, &c, A wind-mill attack was made on a
house into which six light companies had thrown
themselves to avoid our bayonets ; this gave time to
the enemy to rally ; our troops were deceived by this
attack ; taking it for something formidable, they fell
back to assist in what they deemed a serious matter.
The enemy finding themselves no further pursued, and
believing it to be a retreat, followed. Confusion en
sued, and we ran away from the arms of victory ready
to receive us,' '
Marshall was with the column that halted'to attack
Chew's House • — an attack to which the ill success of
the day is undoubtedly attributable. No further serious
engagement took place between the two armies during
this campaign; and on the 19th of December, Wash
ington, with his exhausted troops, went into winter
quarters at Valley Forge, The cold was extreme ; yet
his men were without clothes to cover their nakedness,
without blankets to lie on, and without shoes, so that
their marches could be traced by the blood from their
feet. They were as often without provisions as with.
But these men, taking up their winter quarters within
a day's march of the enemy, without a house or hut to
cover them, till they could be built, pinched by hun
ger, and stiffened by cold, submitted to hardships and
privations like these without a murmur. Well might
Washington declare without arrogance, or the smallest
deviation from truth, 'that no history, now extant,
' Gordon, vol. ii., p. 235.

296 LIFE OF JOHN MARSHALL.
can furnish an instance of an array's suffering such
uncommon hardships as ours has done, and bearing
them with the same patience and fortitude.' '
Marshall's mess-mates, during this memorable win
ter, were Lieutenant Robert Porterfield, Captain
Charles Porterfield, Captain Johnson, and Lieutenant
Philip Slaughter. The latter has described the suffer
ings they endured from want of food and clothing.
'Most of the officers gave to their almost naked sol
diers nearly the whole of their clothing, reserving only
that they themselves had on. Slaughter was reduced
to a single shirt. While this was being washed, he
wrapped himself in a blanket. From the breast of his
only shirt he had wrist-bands and a collar made, to
complete his uniform for parade. Many of his brother
officers were still worse off, ha,ving no under garment
at all ; and not one soldier in five had a blanket. They
all lived in rude huts, and the snow was knee-deep
the whole winter. Washington, daily invited the offi
cers, in rotation, to dine with him at his private table;
but, for want of decent clothing, few were enabled to
attend. Slaughter being so much better provided, fre
quently went in place of others, that, as he said, "his
regiment might be represented." While in this starv
ing condition, the country people brought food to the
camp. Often the Dutch women were seen riding in,
sitting on bags on their horses' backs, holding two or
three bushels each of apple pies, baked sufficiently
hard to be thrown across the room without breaking.
These were purchased eagerly, eaten with avidity,
and considered a great luxury.'
Slaughter says, 'Marshall was the best-tempered
man he ever knew. During their sufferings at Valley
' Washington's Writings, vol. v., pp. 321, 329.

HIS MILITARY SERVICES. 297
Forge, nothing discouraged, nothing disturbed him; if
he had only bread to eat, it was just as well; if only
meat, it made no difference. If any of the officers
murmured at their deprivations, he would shame them
by good-natured raillery, or encourage them by his
own exuberance of spirits. He was an excellent com
panion ; and idolized by the soldiers, and his brother
officers, whose gloomy hours were enlivened by his in
exhaustible fund of anecdote.''
A further testimony, as to the estimation in which
he was held by his brother officers, is found in the fol
lowing extract. ' When the writer of this article first
saw him,' says a cotemporary, ' he held the commis
sion of Captain in that regiment.^ It was in the try
ing, 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 twenty-two
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 dis
criminated for superior intelligence. Our informant,
Colonel 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 w^as con
stantly chosen arbiter ; and that officers, irritated by
' Howe's Virginia Historical Collections, pp. 239, 266.
^ Eleventh Virginia B,egiment.

298 LIFE OF JOHN MARSHALL.
differences, or animated by debate, often submitted the
contested points to his judgment, which, being in
writing, and accompanied, as it commonly was, by
sound reasons in support of his decision, obtained
general acquiescence.' '
He was often employed, during this period of his
military life, as Deputy Judge Advocate. The per-.
formance of the duties of this post extended his ac
quaintance among the officers of the army. It was
now that he became acquainted with Colonel Hamil
ton, who was acting as aid-de-camp of the Comman
der-in-chief. 'Of Hamilton,' says Judge Story, 'he
always spoke in the most unreserved manner, as a sol
dier and statesman of consummate ability; and, in
point of comprehensiveness of mind, purity of patriot
ism, and soundness of principles, as among the first
that had ever graced the councils of any nation. His
services to the American Republic he deemed to have
been of inestimable value, and such as had eminently
conduced to its stability, its prosperity, and its true
glory.' ^ But, notwithstanding the deep respect he
always entertained for Hamilton, 'whose unreserved
friendship, at a subsequent period of his life, he fami
liarly enjoyed,' we shall hereafter see that, when the
man by whose hand he had fallen, was brought before
him on a charge of treason, he held the scales of jus
tice with so nice a poise, he held up before the pri
soner the shield of the law with so firm a hand, that
if it did not excite the surprise, at least, provoked the
indignation of the Chief Executive Magistrate, who
pressed the conviction of Burr with a zeal that seem
ingly had its root in vindictiveness.

' North American Keview for January, 1828, p. 8.
° Story's Discourse on the Life, &c., of John Marshall, p. 16

HIS MILITARY SERVICES. 299
The possession of Philadelphia promised so little
advantage to the Royal forces, and, indeed, exposed
them to such danger, that the British Ministry sent
out orders, in the spring of 1778, for its speedy evacu
ation. These orders reached Sir Henry Clinton, who
had superseded Sir William Howe, early in June. He
immediately addressed himself to the task of executing
them. In the night of the 18th, the city was evacu
ated. The American army was immediately put in
motion, with the view to harass and impede the pro
gress of the enemy.
Marshall was in the Battle of Monmouth, which
succeeded. He remained with the army through the
campaign, as well as during the following winter. In
the campaign of 1779, it was his fortune to be con
nected with or engaged in two of the most brilliant
actions that distinguished it. He was with Wayne at
the assault of Stony Point, on the night of the 16th
of June, and with the detachment to cover the retreat
of Major Lee, after his surprise of the enemy's post at
Powle's Hook, on the 19th of July ; an enterprise
w^hich threw a lustre upon the American arms. He
continued with the army until the close of the year,
when a part of the Virginia line was sent to South
Carolina, to co-operate in the defence of that State, It
so happened, that he was attached to the other part,
whose term of enlistment now expired. Being thus
without command, he, with other supernumeraries,
was directed to return home, in order to take charge
of such men as the State might raise for them.
No further opportunity for active military service
occurred, until the arrival in Virginia of the British
army under General Leslie, in October, 1780, Cap
tain Marshall now joined the small force under Baron
Steuben, who had been left by General Greene, (while

300 LIFE OF JOHN MARSHALL.
on his way to assume the command of the Southern
army,) to direct the defence of the State. General Les
lie, however, finding that Lord Cornwallis could not
effect a junction with him, an object which was essen
tial to the success of the plan for the reduction of Vir
ginia, finally sailed for Charleston.
Late in December, the State was again invaded by
Arnold. Marshall joined the forces collected to oppose
him, and continued in service until Arnold retired to
Portsmouth, in the latter part of the following January.
As there was still a redundancy of officers in the Vir
ginia line, he now resigned his commission ; and for
the future we shall view him in a different walk of
life.

HIS PRACTICE AT THE BAR. 301

CHAPTER IV.
HIS PRACTICE AT THE BAR.
1781 — 1799.
During the season of inaction following his return
to Virginia, in the winter of 1779-80, Marshall re
sumed the study of the law. He attended, at William
and Mary's College, a course of law lectures by Mr.
Wythe, better known afterwards as Chancellor Wythe,
and lectures upon natural philosophy by Mr. Madison,
then President of the College, and subsequently Bishop
of Virginia. He was connected with the institution
until the summer vacation of 1780, and soon after was
admitted to the Bar. But, in the tumult of war, the
courts of law were suspended in Virginia, and not re
opened until after the capture of Cornwallis, in Octo
ber, 1781, From the termination of Arnold's invasion,
when he resigned his commission, until he began his
practice upon the re-opening of the Courts, Marshall
devoted himself, with unremitting attention, to the
study of his future profession.
It was at this period of his life, either in the sum
mer of 1780 or 1781, that he undertook a joufney to
Philadelphia on foot, in order to be inoculated for the
small-pox. He walked at the rate of thirty-five miles
a day. On his arrival, such was his shabby appear
ance, that he was refused admission into one of the
hotels ; his long beard, and worn-out garments, proba-

302 LIFE OF JOHN MARSHALL.
bly suggesting the idea that his purse was not adequate
to his entertainment.' But to the man who had under
gone the hardships of Morristown and Valley Forge,
who had been reduced almost to nakedness, any garb
that served the purpose of a covering, must have
seemed sufficient for any occasion. In truth, he was
at all times careless of his dress, particularly in early
life ; and once, as we shall presently relate, lost a
generous fee in consequence.
He began his professional career in Fauquier, his
native county ; but, in the course of two years, re
moved to Richmond, where he continued to reside
until his death. His stock of legal knowledge, as we
may infer from the short time he had devoted to its
acquisition, was not very extensive ; but it was said
of the Virginians, more than a hundred and fifty jears
ago, that, being naturally of good parts, they neither
require nor admire as much learning as they do in
Britain.^ At any rate, such was the felicity of Mar
shall's understanding, that on a slender foundation of
legal science he soon raised himself to the highest
reputation in his profession. He attributed his early
success at the Bar to the friendship of his old com-
' Southern Literary Messenger, vol. ii., p. 183.
" 'The Present State of Virginia; by Hugh Jones, A.M., Chap
lain to the Honorable Assembly, and lately Minister of Jamestown,
in Virginia.' The Eeverend author seems to have been charmed
with his residence among the Virginians, and thus asserts their supe
riority over all the other colonists: — 'If New England,' he says, 'be
called a receptacle of Dissenters, and an Amsterdam of religion, Penn
sylvania a nursery of Quakers, Maryland the retirement of Eoman
Catholics, North Carolina the refuge of runaways, and South Carolina
the delight of Buccaneers and Pyrates, Virginia may be justly es
teemed the happy retreat of true Britons, and true churchmen for
the most part ; neither soaring too high, nor dropping too low, conse
quently should merit the greater esteem and encouragement.'

HIS PRACTICE AT THE BAR. 303
panions in arms. ' They knew,' he would say, ' that
I felt their wrongs, and sympathized in their suffer
ings, and had partaken of their labors, and that I vin
dicated their claims upon their country with a warm
and constant earnestness." We have seen how strong
was their attachment to him. ' I myself,' says Judge
Story, ' have often heard him spoken of by some of
these veterans in terms of the warmest praise.. In an
especial manner the Revolutionary officers of the Vir
ginia line (now " few and faint, but fearless still")
appeared almost to idolize him, as an old friend and
companion in arms, enjoying their unqualified confi
dence,' ^
They knew his abilities, his integrity, and loved him
for the goodness of his heart. Strangers, on the con
trary, judging from external appearances, might not
so readily have given him credit for qualities that
would insure success at the Bar. For, though easy,
frank, friendly, and cordial in his manners, and social
in his habits, he was yet negligent in his dress, not
very studious, and with nothing in his exterior to
attract clients. The following anecdote is character
istic of his rustic appearance, at a time when his com
prehension and grasp of mind had already attracted
the attention of the Bench and Bar, and he was ad
vancing with sure steps to the head of his profession.
He ' was one morning strolling through the streets of
Richmond, attired in a plain linen roundabout and
shorts, with his hat under his arm, from which he was
eating cherries, when he stopped in the porch of the
Eagle hotel, indulged in some little pleasantry with
the landlord, and then passed on. Mr. P., an elderly
' New York Review, vol. iii., p. 333.
" Discourse upon the Life, &c., of John Marshall, p. 16.

304 LIFE OF JOHN MARSHALL.
gentleman from the country, then present, who bad a
case coming on before the Court of Appeals, was re
ferred by the landlord to Marshall, as the best advo
cate for him to employ ; but the careless, languid air
of the young lawyer had so prejudiced Mr. P., that he
refused to engage him. On entering Court, Mr. P. was
a second time referred by the Clerk of the Court, and
a second time he declined. At this moment entered
Mr. v., a venerable-looking legal gentleman, in a pow
dered wig and black coat, whose dignified appearance
produced such an impression on Mr. P. that he at once
engaged him. In the fi.rst case which came on, Mar
shall and Mr. V. each addressed the Court. The vast
inferiority of his advocate was so apparent, that, at
the close of the case, Mr, P, introduced himself to
young Marshall, frankly stated the prejudice which
had caused him, in opposition to advice, to employ Mr.
V. ; that he extremely regretted his error, but knew
not how to remedy it. He had come into the city with
one hundred dollars, as his lawyer's fee, which he had
paid, and had but five left, which, if Marshall chose,
he would cheerfully give him, for assisting in the case.
Marshall, pleased with the incident, accepted the offer,
not, however, without passing a sly joke at the omni
potence of a powdered wig and black coat.' '
Marshall's rise at the Bar was rapid. Once placed
in the line of employment, his extraordinary talents
could hardly fail to make the same impression on who
ever witnessed their display, as on Mr. P.. For, with
out possessing scarcely a single attribute that we natu
rally ascribe to the orator, without beauty of style,
melody of voice, grace of person, or charm of manner,
be, nevertheless, was as distinguished as an advocate,
' Howe's Virginia Historical Collections, p. 266.

HIS PRACTICE AT THE BAR. 305.
as he afterwards became as a judge. The qualities
that gave him such pre-eminence at the Bar are thus
delineated by the graceful pen of Mr. Wirt : —
'This extraordinary man,' says Mr. Wirt, 'without
the aid of fancy, without the advantages of person,
voice, attitude, gesture, or any of the ornaments of an
orator, deserves to be considered as one of the most
eloquent men in the world ; if eloquence may be said
to consist in the power of seizing the attention with
irresistible force, and never permitting it to elude the
grasp, until the hearer has received the conviction
which the speaker intends. His voice is dry and
hard ; his attitude, in his most effective orations, was
often extremely awkward ; while all his gesture pro
ceeded from his right arm, and consisted merely in a
perpendicular swing of it, from about the elevation of
his head to the bar, behind which he was accustomed
to stand. As to fancy, if she hold a seat in his mind
at all, his gigantic genius tramples with disdain on all
her flower-decked plats and blooming parterres. How
then, you will ask, how is it possible, that such a man
can hold the attention of an audience enchained
through a speech of even ordinary length ? I will tell
you. He possesses one original, and almost super
natural faculty; the faculty of developing a subject
by a single glance of his mind, and detecting at once
the very point on which every controversy depends.
No matter what the question ; though ten times more
knotty than " the gnarled oak," the lightning of hea
ven is not more rapid, or more resistless, than his
astonishing penetration. Nor does the exercise of it
seem to cost him an effort. On the contrary, it is as
easy as vision. I am persuaded, that his eyes do not
fly over a landscape, and take in its various objects
Vol. IL— 20

306 LIFE Of JOHN MARSHALL.
with more promptitude and facility, than his mind
embraces and analyzes the most complex subject.
' Possessing, while at the Bar, this intellectual eleva
tion, which enabled him to look down and comprehend
the whole ground at once, he determined immediately,
and without difficulty, on which side the question
might be most advantageously approached and assailed.
In a bad cause, his art consisted in laying his premises
so remotely from the point directly in debate, or else
in terms so general and so specious, that the hearer,
seeing no consequence which could be drawn from
them, was just as willing to admit them as not; but,
his premises once admitted, the demonstration, how
ever distant, followed as certainly, as cogently, as in
evitably, as any demonstration in Euclid. All his
eloquence consists in the apparently deep self-convic
tion, and emphatic earnestness of his manner; the cor
respondent simplicity and energy of his style; the
close and logical connection of his thoughts ; and the
easy gradations by which he opens his lights on the
attentive minds of his hearers. The audience are
never permitted to pause for a moment. There is no
stopping to weave garlands of flowers, to hang in fes
toons around a favorite argument. On the contrary,
every sentence is progressive; every idea sheds new
light on the subject; the listener is kept perpetually
in that sweetly pleasurable vibration, with which the
mind of man always receives new truths; the dawn
advances with easy but unremitting pace ; the subject
opens gradually on the view; until, rising, in high re
lief, in all its native colors and proportions, the argu
ment is consummated, by the conviction of the de
lighted hearer.'' ' The British Spy, pp. 178-181.

HIS PRACTICE AT THE BAR, 307
If Marshall, as he first appeared at the Bar, did not
bear a finished resemblance to the picture thus sketched
by Mr. Wirt nearly a quarter of a century after, he
certainly possessed the more striking outlines of it.
Strength, cogency of reasoning, was the characteristic
excellence of all his intellectual displays. His maxim
seems always to have been, ' aim exclusively at
strength.' Of eloquence, in the usual sense, he evi
dently was n.ot emulous, and, perhaps, not capable.
His object was to convince, and he sought to do this
in the most direct and simple manner. It was always
remarkable of him, says Wirt, ' that he almost inva
riably seized one strong point only, the pivot of the
controversy; this point he would enforce with all his
powers, never permitting his own mind to waver, nor
obscuring those of his hearers by a cloud of inferior,
unimportant considerations.'' This 'convincing elo
quence,' which he so pre-eminently possessed, ' is infi
nitely more serviceable to its possessor than the most
florid harangue, or the most pathetic tones that can be
imagined ; and the man who is thoroughly convinced
himself, who understands his subject, and the language
he speaks in, will be more apt to silence opposition,
than he who studies the force of his periods, and fills
our ears with sounds, while our minds are destitute of
conviction.' ^
The period succeeding the Revolutionary War wit
nessed a great accession of business in the Courts.
Outstanding debts, unfulfilled contracts, together with
the mutations property had undergone amid the con
flicts of a long war, were fruitful sources of litigation.
'Does not every gentleman here know' demanded
Marshall in the Virginia Convention of 1788, when
' The British Spy, p. 211. ' The Bee, No. VI.

308 LIFE OF JOHN MARSHALL.
maintaining the necessity of a Federal Judiciary, ' that
the causes in our Courts are more numerous than they
can decide, according to their present construction?
Look at the dockets. You will find them crowded
with suits, which the life of man will not see deter
mined. If some of these suits be carried to other
Courts, will it be wrong? They will still have busi
ness enough.'
It was a period not only of profitable employment
to the Bar, but a period calculated to stimulate the
highest energies of their minds. The fair fabric of
American jurisprudence was yet unreared. The law
was in an unsettled state. Questions of novel charac
ter occupied the attention of the Courts ; questions to
be settled, not by the weight of autborit}^, but by the
light of reason. It was in the investigation and
argument of causes like these, where the advocate
was neither aided nor impeded by precedents; where
he was compelled to rely on the unassisted powers of
his own mind; to support his own thoughts, rather
than quote the thoughts of others, that the great abili
ties of Marshall found an adequate theatre for their
employment and display.
When the Federal Judiciary was established, the
sphere of his practice was enlarged. Several of the
causes in which he was engaged possessed great public
interest, and attracted universal attention. The fame
of his arguments spread through the Union. Ware
versus Hylton, familiarly known as the British debt
case, was one of the causes in which he particularly
distinguished himself. It came on for trial at the Cir
cuit Court of the United States at Richmond, in 1793;
Chief Justice Jay, Judge Iredell, and Griffin, the
Judge of the District Court, holding the term. Patrick
Henry, Marshall, Alexander Campbell, and James

HIS PRACTICE AT THE BAR, 309
Innis, appeared for the American debtors; and An
drew Ronald, John Wickham, 'the eloquent, the witty,
and the graceful," and Starke, and Baker, for the
English creditors.
The question was, whether the treaty of peace,
which provided that creditors on either side should
meet with no lawful impediment to the recovery of the
full value of all bona fide debts theretofore contracted,
revived debts which had been sequestered during the
war by an act of the Virginia Legislature,
The eminence of the counsel, as well as the exten
sive interests to be affected by the decision of the
Court, brought together an eager and expectant aud
ience. The Countess of Huntington, then in this coun
try, was present during the trial, and remarked, after
hearing the several speakers, ' that if every one of
them had spoken in Westminster Hall, they would
have been honored with a peerage,' ' ' The cause,' said
Judge Iredell, ' has been spoken to, at the Bar, 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 inge
nuity, a depth of investigation, and a power of reason
ing fully equal to anything I have 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,' ^
Patrick Henry shone, on this occasion, with unsur-

' Howe's Virginia Historical Collections, p. 221,
^ Dallas' Reports, vol. iii., p. 257.

310 LIFE OF JOHN MARSHALL.
passed splendor. His vivid feelings, that irresistible
charm of his eloquence, were fully aroused, and en
listed in the cause. He made unwonted preparation
for the trial; shutting himself up in his office for three
days, during which time he did not see even his
family; his food being handed by a servant through
the office-door.' His argument occupied the attention
of the Court during three days. He had a diamond
ring on his finger, and, while he was speaking, the
Countess of Huntington exclaimed to Judge Iredell,
who had never before heard him, 'The diamond is
blazing!' 'Gracious God 1' replied he, 'he is an ora
tor indeed.' In this cause he injured his voice so that
it never recovered its original power.''
We have no abstract of Marshall's argument on this
occasion, and shall not attempt to supply its place by
resorting to conjecture. Its character, however, may
be surmised by his subsequent argument before the
Supreme Court of the United States, whither the cause
was carried by writ of error. His colleague in the
trial before the latter tribunal was Alexander Camp
bell. It was, doubtless, to the arguments on this occa
sion to which Wirt refers in the following extract of a
letter to his friend Gilmer. He speaks of them, how
ever, as having been made in the cause which turned
on the constitutionality of the carriage tax, a cause,
indeed, which was heard at the same term of the
Court; but Marshall was not one of the counsel.
' From what I have heard of Campbell,' says Wirt,
' I believe that, for mere eloquence, his equal has
never been seen in the United States. He and the

' Virginia Historical Collections, supra.
^ Ibid. See also Wirt's Patrick Henry, for abstract of his argument

HIS PRACTICE AT THE BAR. 311
Chief Justice went to Philadelphia to argue a cause
which turned on the constitutionality of the carriage
tax. It was somewhere about 1795 or 1796. They
were opposed by Hamilton, Lewis, and others. Camp
bell played off his Appollonian airs ; but they were
lost. Marshall spoke, as he always does, to the judg
ment 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 admi
ration 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 practice on his maxim with the most
rigorous severity, until the character of my mind was
established.' '
Marshall's argument, as preserved in the report of
the case, will now claim our attention : —
'The case resolves itself,' said he, 'into two general
propositions. First, That the Act of Assembly of Vir
ginia is a bar to the recovery of the debt, independent
of the treaty. Secondly, That the treaty does not re
move the bar.
' That the Act of Assembly of Virginia is a bar to
the recovery of the debt, introduces two subjects for
consideration : —
' First, Whether the Legislature had power to ex
tinguish the debt? Secondly, Whether the Legislature
had exercised that power?
' Kennedy's Wirt, vol. ii., p. 83.

312 LIFE OF JOHN MARSHALL.
' First. It has been conceded, that independent na
tions have, in general, the right of confiscation; and
that Virginia, at the time of passing her law, was an
independent nation. But, it is contended, that, from
the peculiar circumstances of the war, the citizens of
each of the contending nations having been members
of the same government, the general right of confisca
tion did not apply, and ought not to be exercised. It
is not, however, necessary for the defendant in error
to show a parallel case in history ; since it is incum
bent on those who wish to impair the sovereignty of
Virginia, to establish, on principle, or precedent, the
justice of their exception. That State being engaged
in a war, necessarily possessed the powers of war; and
confiscation is one of those powers, weakening the
party against whom it is employed, and strengthening
the party that employs it. War, indeed, is a state of
force ; and no tribunal can decide between the bellige
rent powers. But did not Virginia hazard as much by
the war, as if she had never been a member of the
British empire ? Did she not hazard more, from the
very circumstance of its being a civil war? It will be
allowed, that nations have equal powers; and that
America, in her own tribunals at least, must, from the
4th of July, 1 776, be considered as independent a na
tion as Great Britain. Then, what would have been
the situation of American property, had Great Britain
been triumphant in the conflict ? Sequestration, con
fiscation, and proscription would have followed in the
train of that event; and why should the confiscation
of British property be deemed less just in the event
of the American triumph ? The rights of war clearly
exist between members of the same empire, engaged
in a civil war.
' But, suppose a suit had been brought, during the

HIS PRACTICE AT THE BAR. 313
war, by a British subject against an American citizen,
it could not have been supported ; and, if there was a
power to suspend the recovery, there must have been
a power to extinguish the debt. They are, indeed,
portions of the same power, emanating from the same
source. The legislative authority of any country can
only be restrained bj' its own municipal constitution.
This is a principle that springs from the very nature
of society; and the judicial authority can have no
right to question the validity of a law^, unless such a
jurisdiction is expressly given by the Constitution, It
is not necessary to inquire how the judicial authority
should act, if the Legislature were evidently to violate
any of the laws of God ; but property is the creature
of civil society, and subject, in all respects, to the dis
position and control of civil institutions 
* But it is now to be considered, whether, if the
Legislature of Virginia had the power of confiscation,
they have exercised it? The third section of the
Act of Assembly discharges the debtor; and, on the
plain import of the term, it may be asked, if he is dis
charged, how can he remain charged ? The expression
is, he shall be discharged from the debt ; and yet, it is
contended he shall remain liable to the debt. Suppose
the law had said, that the debtor should be discharged
from the Commonwealth, but not from his creditor,
would not the Legislature have betrayed the extremest
folly in such a proposition ? and what man in his
senses would have paid a farthing into the treasury
under such a law ? Yet, in violation of the expressions
of the Act, this is the construction which is now
attempted. ' It is, likewise, contended, that the Act of Assembly
does not amount to a confiscation of the debts paid
into the treasury; and that the Legislature had no

314 LIFE OF JOHN MARSHALL.
power, as between creditors and debtors, to make a
substitution, or commutation, in the mode of payment.
But, what is a confiscation? The substance, and not
the form, is to be regarded. The State had a right
either to make the confiscation absolute^ or to modify
it as she pleased. If she had ordered the debtor to
pay the money into the treasury, to be applied to pub
lic uses, would it not have been, in the eye of reason,
a perfect confiscation ? She has thought proper, how
ever, only to authorize the payment, to exonerate the
debtor from his creditor, and to retain the money in
the treasury, subject to her own discretion, as to its
future appropriation. As far as the arrangement has
been made, it is confiscatory in its nature, and must
be binding on the parties ; though, in the exercise of
her discretion, the State might choose to restore the
whole, or any part, of the money to the original credi
tor. Nor is it sufficient to say, that the payment was
voluntary, in order to defeat the confiscation. A law
is an expression of the public will ; which, when ex
pressed, is not the less obligatory, because it imposes
no penalty. . . .
' Having thus, then, establised that, at the time of
entering into the treaty of 1783, the defendant owed
nothing to the plaintiff, it is next to be inquired, whe
ther that treaty revived the debt in favor of the plain
tiff, and removed the bar to a recovery, which the law
of Virginia had interposed ? The words of the fourth
article of the treaty are, " that creditors on efther side
shall meet with no lawful impediment to the recovery
of the full value, in sterling money, of all bona fide
debts heretofore contracted," Now, it may be asked,
who are creditors ? There cannot be a creditor where
there is not a debt; and British debts were extin
guished by the act of confiscation. The articles, there-

HIS PRACTICE AT THE BAR. 315
fore, must be construed with reference to those credi
tors who had bona fide debts subsisting, in legal force,
at the time of making the treaty ; and the word reco
very can have no effect to create a debt, where none
previously existed. Without discussing the power of
Congress to take away a vested right by treaty, the
fair and rational construction of the instrument itself
is sufficient for the defendant's cause. The words
ought, surely, to be very plain, that shall work so evi
dent a hardship, as to compel a man to pay a debt
which he had before extinguished. The treaty itself
does not point out any particular description of per
sons who were to be deemed debtors ; and it must be
expounded in relation to the existing state of things.
' It is not true, that the fourth article can have no
meaning, unless it applies to cases like the present.
For instance — there was a law of Virginia, which pro
hibited the recovery of British debts, that had not
been paid into the treasury. These were hona fide
subsisting debts ; and the prohibition was a legal im
pediment to the recovery, which the treaty was in
tended to remove. So, likewise, in several other
States, laws had been passed authorizing a discharge
of British debts in paper money, or by a tender of pro
perty at a valuation, and the treaty was calculated to
guard against such impediments to the recovery of the
sterling value of those debts. It appears, therefore,
that, at the time of making the treaty, the state of
things was such, that Virginia had exercised her sove
reign right of confiscation, and had actually received
the money from the British debtors. If debts thus
paid were within the scope of the fourth article, those
who framed the article knew of the payment; and,
upon every principle of equity and law^, it ought to be
presumed, that the recovery, which they contemplated.

316 LIFE OF JOHN MARSHALL.
was intended against the receiving State, not against
the paying debtor. Virginia possessing the right of
compelling a payment for her own use, the payment
to her, upon her requisition, ought to be considered as
a payment to the attorney, or agent, of the British
creditor. Nor is such a substitution a novelty in legal
proceedings; a foreign attachment is founded upon the
same principle. . . .
' This Act of Virginia must have been known to the
American and British Commissioners; and, therefore,
cannot be repealed without plain and explicit expres
sions directed to that object. Besides, the public faith
ought to be preserved. The public faith was plighted
by the Act of Virginia; and, as a revival of the debt
in question would be a shameful violation of the faith
of the State to her own citizens, the treaty should re
ceive any possible interpretation to avoid so dishonor
able and so pernicious a consequence. It is evident,
that the power of the Government to take away a
vested right, was questionable in the minds of the
American Commissioners, since they would not exer
cise that power in restoring confiscated real estate;
and confiscated debts, or other personal estate, must
come within the same rule,' &c.
The abstract of an argument like this of Marshall's,
must necessarily give the reader an imperfect idea of
its power. Nevertheless, he cannot fail to be impressed
with the vigor, rigorous analysis, and close reasoning
that mark every sentence of it. We have seen that
it elicited great admiration at the time of its delivery,
and enlarged the circle of his reputation. His prac
tice, for several years before his final withdrawal from
the Bar, was more extensive than that of any other
lawyer in Virginia. The Duke de Liancourt, who was

HIS PRACTICE AT THE BAR. 317
in Richmond, in 1797, speaking of Edmund Randolph,
the ex-Secretary of State, says that ' he has great
practice, and stands, in that respect, nearly on a par
with Mr. J. Marshall, the most esteemed and cele-
br^ated counsellor in this town. The profession of a
lawyer is here, as in every other part of America, one
of the most profitable. But, though the employment
be here more constant than in Carolina, the practi
tioner's emoluments are very far from being equally
considerable. Mr. Marshall does not, from his prac
tice, derive above four or five thousand dollars per
annum, and not even that sum every year.' '
' Mr. J. Marshall,' says the Duke, after a more fami
liar acquaintance with the public characters at the
capital of Virginia, ' conspicuously eminent as a pro
fessor of the law, is, beyond all doubt, one of those
who rank highest in the public opinion at Richmond.
He is what is termed a Federalist, and perhaps, at
times, somewhat warm in support of his opinions, but
never exceeding the bounds of propriety, which a man
of his goodness, and prudence, and knowledge, is inca-
ble of transgressing. He may be considered as a dis
tinguished character in the United States. His politi
cal enemies allow him to possess great talents, but
accuse him of ambition. I know not whether the
charge be well or ill-grounded, or whether that ambi
tion might ever be able to impel him to a dereliction
of his principles — a conduct of which I am inclined
to disbelieve the possibility on his part. He has
already refused several employments under the Gene
ral Go-^ernment, preferring the income derived from
his professional labors (which is more than sufficient
' Travels, vol. ii., p. 38.

318 LIFE OF JOHN MARSHALL,
for his moderate system of economy), together with a
life of tranquil ease in the midst of his family, and in
his native town,' Even by his friends he is taxed
with some little propensity to indolence ; but, even if
this reproach were well-founded, he, nevertheless, dis
plays great superiority in his profession when he ap
plies his mind to business,' ^
We shall see, in the following chapters, that Mar
shall never sought office ; that, in most instances, he
accepted it with reluctance, and always returned to
his profession with renewed interest, and a determina
tion to pursue it wdth undivided attention. His ambi
tion, if that sentiment held any place in his mind at
all, sought its gratification in the triumphs of the Bar,
[Though warmly and earnestly attached to the poHti-
cal principles of the Federal party, he seems to have
j had a repugnance to a political career. His nature
was not sufficiently eager and aspiring to seek or covet
its honors. When he engaged in the public service,
it was, for the most part, for some special purpose,
and on some special occasion. In truth, the insinu
ation that selfish ambition influenced either his sen
timents or conduct finds no support in any act of his
life. 'Even by his friends he is taxed with some little
propensity to indolence,' says, the Duke de Liancourt;
and his friends, we suspect, were not unjust to him.
In truth, he was something of a truant. But such
were the vigor and comprehension of his mind, that
he could better afford, than most men, to indulge a
fondness for social, and even convivial enjoyment,
' This is a mistake ; Marshall being a native of Fauquier County.
' Travels, vol. ii., p. 62,

HIS PRACTICE AT THE BAR, 319
It was hardly possible for a lawyer of Marshall's
conceded abilities, and great personal popularity, to
keep aloof from public life during the eventful period
in which he lived. Having, therefore, seen what suc
cess crowned his exertiofis at the Bar, we shall now
proceed to trace his various services to the public, at
home and abroad.

820 LIFE OF JOHN MARSHALL,

CHAPTER V.
1782-1788.
MEMBER OF THE VIRGINIA LEGISLATURE.
The political career of John Marshall is prominently
distinguished for his devotion to the Union of the
States, and a government competent to maintain it.
He early perceived the inadequacy of the Confederar
tion, and the absolute necessity of a more comprehen
sive and vigorous central authority. He belonged,
from the outset, to the party who would strengthen
the General Government, and enable it to execute the
powers with which it might be invested, independently
of the several States. Virginia was the State of his
birth, and the home of his affections ; but the United
States constituted his country — a country dearer and
more comprehensive than the local limits within which
he was born. His attachment to the Union was
formed early, and fostered by the circumstances that
attended his outset in life.
' When I recollect,' thus he wrote long after to a
friend, ' 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,

MEMBER OF VIRGINIA LEGISLATURE, 321
and the resistance to the claims of Great Britain, were
the inseparable inmates of the same bosom ; when pa
triotism 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 im
bibed these sentiments so thoroughly, that they con
stituted 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 in the
habit of considering America as my country, and Con
gress as my government,' '
These sentiments were confirmed by the progress of
events, and his experience in the Assembly of Vir
ginia, He was elected a member of that body in the
spring of 1782, and in the autumn a member of the
Executive Council, He knew what hardships the
army had endured ; he had partaken their sufferings,
and ' my immediate entrance into the State Legisla
ture,' said he in the letter from which the preceding
extract is taken, ' opened to my view the causes which
had been chiefly instrumental in augmenting those suf
ferings; and the general tendency of State politics con
vinced me, that no safe and permanent remedy could
be found, but in a more efficient and better organized
General Government,'^
At this time, the Federal treasury was destitute of
money, and the army without pay, provisions or cloth
ing. The non-compliance of the States with the requi
sitions of Congress threatened the most disastrous con-
' Story's Discourse on the Life, &c., of John Marshall. ° Ibid.
Vol, IL — 21

322 life of JOHN MARSHALL.
sequences. We have seen, in the Life of Rutledge,
that that body sent a deputation to the Eastern and
Southern States, to explain the condition of public
affairs, and the danger to which the country was ex
posed by the delinquency of the several members of
the Confederacy.' Rutledge and Clymer, who were
deputed to visit the Southern States, were permitted
to make a personal address to the Virginia Assembly."'
Of this Assembly Marshall was a member; and a
steady advocate of all measures that tended to
strengthen the Federal authority, and enable it to
perform its obligations to the army, and the pubhc
creditors. His vindications of the claims of the army
upon the country were constant and earnest, and
awakened their gratitude. But so feeble was the
Confederacy, and so languid and exhausted the
States, that he clearly perceived the impossibility of
reviving the public spirit, and restoring the pubUc
credit, without the establishment of a more vigorous
and comprehensive system of government. This was
the leading idea of his scheme of politics.
On the 3d of January, 1783, he was married to Mary
Willis Ambler, a daughter of Jacqueline Ambler, then
Treasurer of Virginia. He had become attached to
this lady before he left the army; an attachment
which continued with unabated fervor to the end of
his days. She died several years before him;
but he cherished her memory with unaffected tender
ness, and in his will described her as a sainted spirit
that had fled from the sufferings of life.
About the time of his marriage, he fixed his resi
dence in Richmond. Desirous of devoting himself
more closely to his profession, he resigned his seat in
' Vol. i., p. 591. ¦' On the 14th of June, 1782.

MEMBER OF VIRGINIA LEGISLATURE. 323
the Executive Council. But he was not permitted
thus to withdraw from public life. His old friends,
neighbors, and former constituents of Fauquier County,
immediately after his resignation, namely, in the spring
of 1784, again elected him a member of the Assembly.
Three years later, Henrico, his adopted county, paid
him the same tribute of respect.
At the time of this last election, the affairs of the
United States were fast sinking into utter disorder and
confusion. Reflecting minds beheld the progress of
events with the most gloomy forebodings. They saw,
that immediate and effectual reform alone could arrestl'
the downward tendency of things. To accomplish that
object they now earnestly addressed themselves. Shall
the arm of the Federal Government be strengthened ;
shall it be invested with larger and more effectual
powers over the commerce, the money, the foreign
and mutual relations of the States; shall it have a
revenue independent of them, and authority to carry
into effect its measures without their instrumentality?
These were the questions that now awakened and agi
tated the public mind. Marshall's judgment, reflec-j
tion, and experience, alike concurred in giving themi
an affirmative answer. But in all the States, and par
ticularly in Virginia, there was a party who were actu
ated by an extreme jealousy of national sovereignty.
Although it was notorious that the Articles of Con
federation had proved totally inadequate to all the
purposes of a government, they insisted that, with
some slight modifications, they conferred on the cen
tral authority all the power with which it was either
prudent or safe to invest it. Rather than give it
more, they would risk a dissolution of the Union;
believing that a consolidated government was more

324

LIFE OF JOHN MARSHALL.

to be dreaded, than the possible separation of the
States.' Against notions like these, Marshall earnestly pro
tested. He believed that the salvation of his country
depended on the prevalence of more enlarged views,
, and more solid principles. In the Assembly, in popu
lar meetings, he maintained the necessity of a more
vigorous scheme of government, not only to preserve
the Union, but to insure its benefits. The doctrines
he now advocated formed the basis of bis political
creed through life. He adhered to them when they
were in the ascendant, and after they had fallen into
disfavor. From first to last, he was a Federalist.
. ' Among innumerable false, unmov'd,
Unshaken, unseduc'd, unterrified;
His loyalty he kept, his love, his zeal.'
He hailed the call of the Federal Convention as an
auspicious event; and, without hesitation, vindicated
the result of its labors.
' Judge Story has said that ' the question, whether the Union
ought to be continued, or dissolved by a total separation of the States,
was freely discussed,' in the halls of the Virginia Legislature ; ' and
either side of it was maintained, not only without reproach, but with
an uncompromising fearlessness of consequences.' Discourse on Mar
shall, p. 25. In this the learned Judge is, probably, in error. There
were in Virginia, as in every other State, enemies of the Union; but
they were not to be found, we apprehend, among her public men.
Many of these, indeed, protested against conferring on the General
Government what they considered dangerous powers ; but they pro
fessed great attachment to the Union of the States. Said George
Ma.son in the Virginia Convention, ' I have never, in my whole life,
heard one single man deny the necessity and propriety of the Union.'
And Governor Randolph, on the same occasion, spoke of a dissolu
tion of the Union, as that deplorable thing ' which no man yet has
dared openly to advocate.'

MEMBER OF VIRGINIA LEGISLATURE. 325
_ 'In the course of the session of 1788,' he says, 'the
increasing efforts of the enemies of the Constitution ,
made a deep impression ; and before its close, a great
majority showed a decided hostility to it. I took an
active part in the debates on this question, and was
uniform in support of the proposed Constitution.'
With these sentiments, he was elected a member of
the Virginia Convention, and in the next chapter we
shall see the part he took in its deliberations.

326 LIFE OF JOHN MARSHALL.

CHAPTER VI.
1788.
MEMBER OF THE VIRGINIA CONVENTION.
Personally, Marshall was the most popular of men.
His serene and joyous temper, his kind and generous
heart, his exemption from pride and affectation, his
moderation, candor, and integrity, attracted and fixed
the regards of men. Though party spirit might
run high, and the principles he espoused be little in
favor, he never failed, when a candidate, to secure his
election, A conspicuous instance of this personal
weight and influence was his election as a member of
the Virginia Convention, which met to decide on the
ratification of the Federal Constitution, The current
of opinion had set strongly against that instrument
throughout Virginia. A majority of the voters of Hen
rico County were supposed to be hostile to it. Never
theless, Marshall, with his well-known opinions, came
forward as a candidate for the Convention.
' The questions,' he said afterwards, ' which were
perpetually recurring in the State Legislatures; and
which brought annually into doubt principles which
I thought most sacred ; which proved, that everything
was afloat, and that we had no safe anchorage ground ; ,
gave a high value, in my estimation, to that article in
the Constitution which imposes restrictions on the

MEMBER OF VIRGINIA CONVENTION. 327
States. I was, consequently, a determined advocate
for its adoption, and became a candidate for, the Con
vention.' ' His opinions constituted the only obstacle
to his election; and the determined effort that was
made, on that ground, to defeat him, signally failed.
' Parties,' as he subsequently said, ' had not yet be
come so bitter as to extinguish the private affections;'
and he was elected by a considerable majorit}'.
. The Convention assembled at Richmond on the 2d
day of June, 1788. It was composed of the best abili
ties of Virginia. The fame of the speakers, and the
magnitude of the question that was to engage their
powers, created a vast expectation.
'Industry deserted its pursuits, and even dissipa
tion gave up its objects, for the superior enjoyments
which were presented by the hall of the Convention.
Not only the people of the town and neighborhood,
but gentlemen from every quarter of the State, were
seen thronging to the metropolis, and speeding their
eager way to the building in which the Convention
held its meetings. Day after day, from morning till
night, the galleries of the house were continually filled
with an anxious crowd, who forgot the inconvenience
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.
' Story's Discourse, p. 28.

328 LIFE OP JOHN MARSHALL.
Day after day was this banquet of the mind and of
the heart spread before them, with a delicacy and va
riety which could never cloy.' '
Conspicuous among those who opposed the ratificar
tion of the Constitution were Patrick Henry, George
Mason, and William Grayson ; a combination of elo
quence, vigor, and genius, not often surpassed, and sel
dom equalled. Foremost among those who supported
it were James Madison and Edmund Randolph: On
the same side were arrayed, among other distinguished
names, the venerable Edmund Pendleton, who presided
over the deliberations of the Convention; James Innis,
the Attorney-General of Virginia, a gentleman of
great eloquence, 'eloquence,' said Patrick Henry,
' splendid, magnificent, and sufficient to shake the hu
man mind,' George and William Nicholas, and John
Marshall. The after-acquired renown of the latter gives a sort
of retroactive interest to his efforts on this occasion ;
but, even disconnected with his subsequent career,
they will be found to possess sufficient merit to fore
show great reputation as a debater. That perfect ex
emption from needless incumbrance of matter or orna
ment, which has been pointed out as characteristic of
all his intellectual displays, and as the effect, in some
degree, of an aversion to the labor of thinking, is
equally evinced in the speeches we are about to lay
before the reader. We could wish, at the same time,
to give him an accurate idea of the speaker's manner
in public debate. That manner was peculiar, but
effective. In nothing, perhaps, did it emulate the un
rivalled oratorical qualities of Patrick Henry. Indeed,
' Life of Patrick Henry, p. 293.

MEMBER OF VIRGINIA CONVENTION. 329
a greater contrast could hardly be conceived than be
tween these two men. The one had passion, fire, im
petuosity, and, as shown by these debates, vigorous
conceptions and clear ideas. The other depended on
reason alone, and yet, when in full career, held the
attention of his audience with as firm a grasp as his
more eloquent opponent. His exordium, however,
was little calculated to create expectation, or awaken
sympathy. ' So great a mind, perhaps, like large bodies in the
physical world, is with difficulty set in motion. That
this is the case with Mr. Marshall's is manifest, from
his mode of entering on an argument, both in conver
sation and in public debate. It is. difficult to rouse
his faculties : he begins with reluctance, hesitation,
and vacancy of eye : presently, his articulation be
comes less broken, his eye more fixed, until, finally,
his voice is full, clear, and rapid, his manner bold, and
his whole face lighted up with the mingled fires of
genius and passion : and he pours forth the unbroken
stream of eloquence in a current deep, majestic,
smooth, and strong. He reminds one of some great
bird, which flounders and flounces on the earth for
awhile, before it acquires impetus to sustain its soar
ing flight.' '
Marshall's first speech in the Convention was on
the power of taxation ; but as the debate had been
discursive, he did not confine his attention exclusively
to that topic, and replied to many of the objections
' ' Sketches and Essays of Public Characters,' by Francis W. Gil
mer.

330 LIFE OF JOHN MARSHALL,
tha,t had been urged against the Constitution as a
whole. ' I conceive,' said he, ' that the object of the discus
sion now before us is, whether democracy or despotism
be most eligible. I am sure that those who framed the
system submitted to our investigation, and those who
now support it, intend the establishment and security
of the former. The supporters of the Constitution
claim the title of being firm friends of the liberty and
the rights of mankind. They say that they consider
it as the best means of protecting liberty. We, Sir,
idolize democracy. Those who oppose it have bestowed
eulogiums on monarchy. We prefer this system to
any monarchy, because we are convinced that it has a
greater tendency to secure our liberty, and promote
our happiness. We admire it, because we think it a
well-regulated democracy. It is recommended to the
good people of this country ; they are, through us, to
declare whether it be such a plan of government as
will establish and secure their freedom.
'Permit me to attend to what the honorable gentle
man [Patrick Henry] has said. He has expatiated
on the necessity of a due attention to certain maxims;
to certain fundamental principles, from which a free
people ought never to depart. I concur with hiin in
the propriety of the observance of such maxims. They
are necessary in any government, but more essential
to a democracy than to any other. What are the fa
vorite maxims of democracy ? A strict observance of
justice and public faith, and a steady adherence to vir
tue. These, Sir, are the principles of a good govern
ment. No mischief, no misfortune, ought to deter us
from a strict observance of justice and public faith.
Would to Heaven that these principles had been ob-

MEMBER OF VIRGINIA CONVENTION, 331
served under the present government I Had this been
the case, the friends of liberty would not be so willing
now to part with it. Can we boast that oui; govern
ment is founded on these maxims ? Can we pretend
to the enjoyment of political freedom or security, when
we are told that a man has been, by an Act of Assem
bly, struck out of existence without a trial by jury,
without examination, without being confronted with
his accusers and witnesses, without the benefits of the
law of the land ? Where is our safety, when we are
told that this act was justifiable, because the person
was not a Socrates ? What has become of the worthy
member's maxims? Is this one of them? Shall it be
a maxim, that a man shall be deprived of his life
without the benefit of law ? Shall such a deprivation
of life be justified by answering, that the man's life
was not taken secundum artem because he was a bad
man ? ' Shall it be a maxim, that government ought
not to be empowered to protect virtue?'

' Marshall here refers to the case of Josiah Phillips, which had
been adduced by Governor Randolph as an instance of gross depar
ture from national principles, as well as a violation of the Constitution
of Virginia. The facts of the case were thus stated by Randolph : —
' From mere reliance on general reports, a gentleman in the House of
Delegates informed the House, that a certain man (Phillips) had com
mitted several crimes, and was running at large, perpetrating othel
crimes. He, therefore, moved for leave to attaint him ; he obtained
that leave instantly ; no sooner did he obtain it, than he drew from
his pocket a bill ready written for that effect; it was read three times
in one day, and carried to t}ie Senate. I will not say that it passed
the same day through the Senate ; but he was attainted very speedily
and precipitately, without any proof better than vague reports. With
out being confronted with his accusers and witnesses, without the
privilege of calling for evidence in his behalf, he was sentenced to
death, and was afterwards actually executed. Was this arbitrary de
privation of life, the dearest gift of God to man, consistent with the
o-enius of a republican government? Is this compatible with the

332 LIFE OF JOHN MARSHALL.
' He says, we wish to have a strong, energetic, pow
erful government. We contend for a well-regulated
democrac_y. He insinuates that the power of the gov
ernment has been enlarged by the Convention, and
that we may apprehend it will be enlarged by others.
The Convention did not, in fact, assume any power.
spirit of freedom ? This, Sir, has made the deepest impression on
my heart, and I cannot contemplate it without horror.' — Elliott's
Debates, vol. iii., p. 66.
Patrick Henry thus replied : — ' The honorable gentleman has
given you an elaborate account of what he judges tyrannical legisla
tion, and an ex post facto law, in the case of Josiah Phillips. He
has misrepresented the facts. That man was not executed by a tyran
nical stroke of power. Nor was he a Socrates. He was a fugitive
murderer, apd an outlaw ; a man who commanded an infamous ban
ditti, and at a time when the war was at the most perilous stage. He
committed the most cruel and shocking barbarities. He was an enemy
to the human name. Those who declare war against the human race
may be struck out of existence as soon as they are apprehended. He
was not executed according to those beautiful legal ceremonies which
are pointed out by the laws in criminal cases. The enormity of his
crimes did not entitle him to it. I am truly a friend to legal forms
and methods ; but. Sir, in this case the occasion warranted the mea
sure. A pirate, an outlaw, or a common enemy to all mankind, may
be put to death at any time. It is justified by the laws of nature and
nations.' — Ibid., p. 140.
When this act of attainder passed, Henry was the Governor of Vir
ginia, and Jefferson a member of the Assembly. Randolph, who had
been hard pressed by Henry in debate, and arraigned for inconsis
tency in now supporting the ConstitutioUj when, as a member of the
Federal Convention, he had refused to sign it, brought forward the
case of Phillips as a means of retaliation. But Jefferson says that
Phillips was not executed under the act of attainder ; that he was in
dicted at common law for either robbery or murder; was regularly
tried, convicted, and executed. No use, he says, was ever made of
the act of attainder. Governor Randolph acted for the Common
wealth in the prosecution ; he being, at that time, Attorney-General.
.Jefferson supposes that there must have been some mistake in the
report of Randolph's statement of the case in the Convention, as well
as in Henry's reply.^-zSisc Jefferson's Works, vol. vi., pp. 369, 440,

MEMBER OF VIRGINIA CONVENTION. 333
They have proposed to our consideration a scheme of
government which they thought advisable. We are
not bound to adopt it, if we disapprove of it. Had not
every individual in this community a right to tender
that scheme which he thought most conducive to the
welfare of his country ? Have not several gentlemen
already demonstrated that the Convention did not ex
ceed their powers ? But the Congress have the power
of making bad laws, it seems. The Senate, with the
President, he informs us, may make a treaty which
shall be disadvantageous to us ; and that, if they be
not good men, it will not be a good Constitution. I
shall ask the worthy member only, if the people at
large, and they alone, ought to make laws and treaties?
Has any man this in contemplation ? You cannot ex
ercise the powers of government personally yourselves.
You must trust to agents. If so, will you dispute
giving them the power of acting for you, from an ex
isting possibility that they may abuse it? As long as
it is impossible for you to transact your business in
person, if you repose no confidence in delegates, be
cause there is a possibility of their abusing it, you can
have no government ; for the power of doing good is
inseparable from that of doing some evil.'
'Let me pay attention to the observation of the gen
tleman who was last up [Mr, Monroe], that the power
of taxation ought not to be given to Congress. This
subject requires the undivided attention of this House,
This power I think essentially necessary; for, without
it, there will be no efficiency in the government. We
have had a sufficient demonstration of the vanity of
depending on requisitions. How, then, can the Gene
ral Government exist without this power ? The possi
bility of its being abused is urged as an argument
against its expediency. To very little purpose did

334 LIFE OF JOHN MARSHALL.
Virginia discover the defects in the old system; to
little purpose, indeed, did she propose improvements;
and to no purpose is this plan constructed for the pro
motion of our happiness, if we refuse it now, because
it is possible it may be abused. The Confederation
has nominal powers, but no means to carry them into
effect. If a system of government were devised by
more than human intelligence, it would not be effec
tual if the means were not adequate to the power. All
delegated powers are liable to be abused. Arguments
drawn from this source go in direct opposition to the
government, and in recommendation of anarchy. The
friends of the Constitution are as tenacious of liberty
as its enemies. They wish to give no power that will
endanger it. They wish to give the government powers
to secure and protect it. Our inquiry here must be,
whether the power of taxation be necessary to perform
the objects of the Constitution, and whether it be safe,
and as well guarded as human wisdom can do it?
What are the objects of the national government ? To
protect the United States, and to promote the general
welfare. Protection, in time of war, is one of its prin
cipal objects. Until mankind shall cease to have am
bition and avarice, wars will arise.'
' There must be men and money to protect us.
How are armies to be raised? Must we not have
money for that purpose? But the honorable gentle
man says that we need not be afraid of war. Look at
history, which has been so often quoted. Look at the
great volume of human nature. They will foretell you
that a defenceless country cannot be secure. The na
ture of man forbids us to conclude that we are in no
danger from war. The passions of men stimulate them
to avail themselves of the weakness of others^ The
Powers of Europe are jealous of us. It is our interest

MEMBER OF VIRGINIA CONVENTION. 335
to watch their conduct, and guard against them. They
must be pleased with our disunion. If we invite them,
by our weakness, to attack us, will they not do it ? If
we add debility to our present situation, a partition of
America may take place. It is, then, necessary to
give the government that power, in time of peace,
which the necessity of war will render indispensable,
or else we shall be attacked unprepared. The expe
rience of the world, a knowledge of human nature,
and our own particular experience, will confirm this
truth. When danger shall come upon us, may we not
do what we were on the point of doing once already ;
that is, appoint a dictator  We may now regu
late and frame a plan that will enable us to repel
attacks, and render a recurrence to dangerous expe
dients unnecessary. If we be prepared to defend our
selves, there will be little inducement to attack us.
But, if we defer giving the necessary power to the Gene
ral Government till the moment of danger arrives, we
shall give it then, and with an misparing hand.'
' I defy you to produce a single instance where re
quisitions on several individual States, composing a
Confederacy, have been honestly complied with. Did
gentlemen expect to see such punctuality complied
with in America? If they did, our own experience
shows the contrary,' ' A bare sense of duty, or a re
gard to propriety, is too feeble to induce men to com
ply with obligations. We deceive ourselves, if we ex
pect any efficacy from these. If requisitions will not
avail, the government must have the sinews of war
some other way. Requisitions cannot be effectual.
They will be productive of delay, and will ultimately
be inefficient. By direct taxation, the necessities of
the government will be supplied in a peaceable man
ner, without irritating the minds of the peonle. But

336 LIFE OF JOHN MARSHALL.
requisitions cannot be rendered efficient without a civil
war ; without great expense of money, and the blood
of our citizens.'
' Is the system so organized as to make iaxation
dangerous ? . . . I conceive its organization to be suffi
ciently satisfactory to the warmest friend of freedom.
No tax can be laid without the consent of the House
of Representatives. If there be no impropriety in the
mode of electing the Representative, can any danger
be apprehended ? They are elected by those who can
elect Representatives in the State Legislature. How
can the votes of the electors be influenced ? By no
thing but the character and conduct of the men they
vote for.' ' If they are to be chosen for their wis
dom, virtue and integrity, what inducement have they
to infringe on our freedom? We are told that they
may abuse their power. Are there strong motives to
prompt them to abuse it ? Will not such abuse mili
tate against their own interest ? Will not they, and
their friends, feel the effects of iniquitous measures ?
Does the Representative remain in office for life? Does
he transmit his title of Representative to his son ? Is
he secured from the burden imposed on the commu
nity ? To procure their re-election, it will be neces
sary for them to confer with the people at large, and
convince them that the taxes laid are for their good.
If I am able to judge on the subject, the power of tax
ation now before us is wisely conceded, and the Repre
sentatives wisely elected.'
' The extent of the country is urged as another ob
jection, as being too great for a republican govern
ment. This objection has been handed from author
to author, and has been certainly misunderstood and
misapplied. To what does it owe its source ? To ob
servations and criticisms on governments, where repre-

MEMBEROFVI.RGINIA CONVENTION. 337
sentation did not e.xis-t. -4s to the legislative , power,
was it ever supposed inadequate to any extent? Ex
tent of country may render it difficult to execute the
laws, but not to legislate. Extent of country does not
extend the power. _ What will be sufficiently energetic
and -operative in a small territory, will be feeble when
extended over a wide-extended country. ... The gentle
man, tells us there are no checks in this plan., Wliat-
has become of his enthusiastic' eulogium on the Ame
rican spirit. We should find a check and control,
when oppressed, from that source. In this country,
there is no exclusive personal stock of interest. The'
interest of the community is blended arid inseparably
connected with that of the individual. When be prO-
naotes his owm, he promotes that of the community.
When we consult the common good,' we consult' our
own. ' When he desires sneh checks as these, he will
find them abundantly here. . They are the best, checkis.
What has become of his eulogium on the Virginia
Constitution? Do the checks in this plan appear less'
excellent than those of the Constitution of Virginia?
If the checks in the Constitution be compared to the
checks in the Virginia Constitution,he will find the'
best security in- the former.'
' The worthy member [Patrick Henry] has con
cluded his observations by many eulogiums on the
British Constitution. It matters not to us whether it
be a wise one or not. I think that, for America at
least, the government on your table is very much supe
rior to it. I ask you, if your House of Representatives
would be better than it is, if a hundredth part of the
people were to elect a majority of them, if your Sena
tors were for life, would they be more agreeable to
you ? If your President" were not accountable to you
for his conduct — if it were a constitutional maxim,
Vol. IL — 22

338 LIFE OF JOHN MARSHALL.
that he could do no wrong — would you be safer than
you are now? If you can answer. Yes, to these ques
tions, then adopt the British Constitution. If not,
then, good as that government may be, this is better.
' The worthy gentleman who was last up [Monroe],
said the confederacies of ancient and modern times
were not similar to ours, and that, consequently, rea
sons which applied against them could not be urged
against it. Do they not hold out one lesson very use
ful to us ? However unlike in other respects, they re
semble it in its total inefficacy. They warn us to shun
their calamities, and place in our government those
necessary powers, the want of which destroyed them.
I hope we shall avail ourselves of their misfortunes,
without experiencing them. There was something
peculiar in one observation he made. He said that
those who governed the cantons of Switzerland were
purchased by foreign powers, which was the cause of
their uneasiness and trouble. How does this apply to
us? If we adopt such a government as theirs, will it
not be subject to the same inconvenience ? Will not
the same cause produce the same effect ? What shall
protect us from it ? What is our security ? He then
proceeded to say, the causes of war are removed from
us ; that we are separated by the sea from the powers
of Europe, and need not be alarmed. Sir, the sea
makes them neighbors to us. Though an immense
ocean divides us, we may speedily see them with us.
What dangers may we not apprehend to our com
merce ? Does not our naval weakness invite an attack
on our commerce ? May not the Algerines seize our
vessels ? Cannot they, and every other predatory or
maritime nation, pillage our ships, and destroy our
commerce, without subjecting themselves to any incon
venience ? He would, he said, give the General Gov-

MEMBER OF VIRGINIA CONVENTION. 339
ernment all necessary powers. If anything be neces
sary, it must be so to call forth the strength of the
Union when we may be attacked, or when the general
purposes of America require it. The worthy gentle
man then proceeded to show, that our present exigen
cies are greater than they ever will be again. Who
can penetrate into futurity ? How can any man pre
tend to say that our future exigencies will be less than
our present? The exigencies of nations have been
generally commensurate to their resources. It would
be the utmost impolicy to trust to a mere possibility
of not being attacked, or obliged to exert the strength
of the community.'
'He then told you that your continental government
will call forth the virtue and talents of America. This
being the case, will they encroach on the power of the
State governments ? Will our most virtuous and able
citizens wantonly attempt to destroy the liberty of the
people? Will the most virtuous act the most wickedly ?
I differ in opinion from, the worthy gentleman. I think
the virtue and talents of the members of the General
Government will tend to the security, instead of the
destruction, of our liberty. I think that the power of
direct taxation is essential to the existence of the
General Government, and that it is safe to grant it.
If this power be not necessary, and as safe from abuse
as any delegated power can possibly be, then, I say
that the plan before you is unnecessary ; for it im
ports not what system we have, unless it have the
power of protecting us in time of peace and war.'
Marshall next addressed the Convention in support
of that clause of the Constitution which gives Congress
power to provide for arming, organizing, and disci
plining the militia, and governing those in the actual

340 -LIFE OF JOHN MARSHALL.
service of the Union. It had been attacked by Patrick
Henry as a very alarming poWer. He declared that,
as the clause expressly vested the General Gpvernmetit
with power to call out the militia to suppress insurrec
tions, &c., it appeared to him, most decidedly; that the
power of suppressing insurrections was exclusively given
to Congress. If it remairied in the States, it was bj
implication. Marshall asked, in reply, if gentlenien were serious
when they asserted that, if the State governments had
power to interfere with, the militia, it was by imphpa-
tion, 'If they were, he asked the Committee whether
the least attention would not show that they were mis
taken. The State governments did not derive, their
powers from the General Government ; but each gov
ernment derived its powers from the people, and each
was to act according to the powers given to it Would
any gentleman deny this ? He demanded if powers
not given were retained by implication. Could any
man say so? Could any man say that this power was
not retained by the States, as they had not given' it
•away ? For, says he, does not a power remain until it
is given away ? The State Legislatures had power to
command and govern their militia before, and have it
still, undeniably, unless there be something in this
Constitution that takes it away,' 'The truth is, that
when power is given to the General Legislature, if it
was in the State Legislature before, both shall exer
cise it ; unless there be an incompatibility in the exer
cise by one to that by the other, or negative words
precluding the State governments from it. But there
are no negative words here. It rests, therefore, with
the States. To me it appears, then, unquestionable
that the State governments can call forth the miUtia,
in case the Constitution should be adopted, in the

MEMBER OP VIRGINIA CONVENTION. 341
same manner as they would have done before its
adoption. ' When the government is drawn from the people,
and depending on the people for its continuance, op
pressive measures will not be attempted, as they will
certainly draw on their authors the resentment of those
on whom they depend. On this government, thus de
pending on ourselves for its existence, I will rest my
safety, notwithstanding the danger depicted by the
honorable gentleman, I cannot help being surprised
that the worthy member thought this power so dan
gerous. What government is able to protect you in
time of war ? Will any State depend on its own exer
tions? The consequence of such dependence, .and with
holding this power from Congress, will be, that State
will fall after State, and be a sacrifice to the want of
power in the General Government, United we are
strong, divided we fall. Will you prevent the General
Government from drawing the militia of one State to
another, when the consequence would be, that every
State must depend on itself? The enemy, possessing
the water, can quickly go from one State to another.
No State will spare to another its militia, which it
conceives necessary for itself It requires a superin
tending power in order to call forth the resources of
all to protect all. If this be not done, each State will
fall a sacrifice. This system merits the highest ap
plause in this respect. The honorable gentleman said
that a general regulation may be made to inflict pun
ishments. Does he imagine that a militia law is to be
ingrafted on the scheme of government, so as to render
it incapable of being changed? The idea of the worthy-
member supposes that men renounce their own in
terests. This would produce general inconveniences
throua;hout the Union, and would be equally opposed

342 LIFE OF JOHN MARSHALL.
by all the States. But the worthy member fears, that
in one part of the Union they will be regulated and
disciplined, and in another neglected. This danger is
enhanced by leaving this power to each State; for
some States may attend to their militia, and others
may neglect them. If Congress neglect our mihtia,
we can arm them ourselves. Cannot Virginia import
arms ? Cannot she put them into the hands of her
militia men ?'
The judicial power bestowed on the General Gov.
eminent by the Constitution, was denounced by the
opponents of that instrument with great earnestness. It
was said that its exercise might destroy the dearest
rights of the community ; that the effect and operation
of the Federal Courts would go to the destruction of
the State governments. To arguments like these, and
of a similar strain, Marshall thus replied : —
' Mr. Chairman, this part of the plan before us is a
great improvement on that instrument from which we
are now departing. Here are tribunals appointed for
the decision of controversies, which were before either
not at all, or improperly, provided for. That many
benefits will result from this to the members of the col
lective society, every one confesses. Unless its organi
zation be defective, and so constructed as to injure, in
stead of accommodating, the convenience of the people,
it merits our approbation. After such a candid and
fair discussion by those gentlemen who support it —
after the very able manner in which they have inves
tigated and examined it — I conceived it would beno
longer considered as so very defective, and that those
who opposed it would be convinced of the impropriety
of some of their objections. But I perceive that they

MEMBER OF VIRGINIA CONVENTION, 343
still continue the same opposition. Gentlemen have gone
on an idea that the Federal Courts will not determine
the causes which may come before them, with the same
fairness and impartiality with which other Courts de
cide. What are the reasons of this supposition ? Do
they draw them from the manner in which the judges
are chosen, or the tenure of their office? What is it
that makes us,trust our judges? Their independence
in office, and manner of appointment. Are not the
judges of the Federal Court chosen with as much wis
dom as the judges of the State governments ? Are
they not equally, if not more independent ? If so, shall
we not conclude that they will decide with equal im
partiality and candor? If there be as much wisdom
and knowledge in the United States as in a particular
State, shall we conclude that that wisdom and knowl
edge will not be equally exercised in the selection of
judges ?'
' With respect to its cognizance [the cognizance of the
Federal judiciary] in all cases arising under the Con
stitution and the laws of the United States, he [George
Mason] says that the laws of the United States being
paramount to the laws of the particular State, there is
no case, but what this will extend to. Has the Govern
ment of the United States power to make laws on
every subject? Does he understand it so ? Can they
make laws affecting the mode of transferring property,
or contracts, or claims, between citizens of the same
State? Can they go beyond the delegated powers?
If they were to make a law not warranted by any of
the powers enumerated, it would be considered by the
judges as an infringement of the Constitution which
they are to guard. They would not consider such a
law as coming under their jurisdiction. They would
declare it void.'

•344 LIFE OF JOHN MARSHALL.
'How disgraceful is it, that the State Courts cannot
be trusted, says the honorable gentleman. What is
the language of the Constitution ?¦ Does it take away
their jurisdiction ? Is it not necessary that the Fede-
rai. Courts should have cognizance of cases arising
under, the Constitution and the laws of the United
States? What is the service or purpose of a judiciary,
but to execute the laws in a peaceable^ orderly man
ner, without shedding blood, or creating a contest, or
availing yourselves of force? If this be the case,
where can its jurisdiction be more necessary than
here?' .' With respect to disputes between a State, and the
citizens of another State, its jurisdiction has been de
cried with unusual vehemence. I hope that no gen
tleman will think that a State will be called at the bar
of the Federal Court.' Is there no such case at pre
sent ? Are there not many cases in which the Legis
lature of Virginia is a party, and yet the State is not
sued ? It is not rational to suppose that the sovereign
power should be dragged before a court. The intent
is, to enable States to recover claims of individuals
residing in other States. I contend that this construc
tion is warranted by the words; but, say they, there
will be partiality in it, if a State cannot be defendant
— if an individual cannot proceed to obtain judgment
against a State, though he may be sued by a State. It
is necessary to be so, and cannot be avoided. I see a
difficulty in making a State defendant, which does not
prevent its being plaintiff. If this be only what can
not be avoided, why object to the system on that
' This, however, was actually done in the case of Chisholm v. Geor
gia. ¦ See vol. i., p. 385 et seq. The decision of the Court in that
case led to an amendment of the Constitution, forbidding such an ex
cise of authority.

MEMBER OF VIRGINIA CONVENTION. 345
account? If an individual has a just claim against
an}' particular State, is it to be presumed that, on ap-
plicaition, he will not obtain satisfaction? But how
could a State recover any claim from a citizen of
another State, without the establishment of these tri
bunals ?
' The honorable member objects to suits being insti
tuted in the Federal Courts, by the citizens of one
State, against the citizens of another State. Were I
to contend that this was necessary in all cases, and
that the government, without it, would be defective,
I should not use my own judgment. But are not the
objections to it carried too far ? Though it may not,
in general, be absolutely necessary, a case may hap
pen, as has been observed, in which a citizen of one
State ought to be able to recur to this tribunal, to re
cover a claim from the citizen of another State. What
is the evil which this can produce ? Will he get more
than justice there? The independence of the judges
forbids it. What has he to get ? Justice. Shall we
object to this, because the citizen of another State can
obtain justice without applying to our State Courts?
It may be necessary, with respect to the laws and re
gulations of commerce, which Congress may make. It
may be necessary in cases of debt, and some other con
troversies. In claims for land, it is not necessary, but
it is not dangerous. In the Court of which State will
it be instituted ? said the honorable gentleman. It
will be instituted in the Court of the State where the
defendant resides, where the law can come at him,
and no where else. By the laws of which State will
it be determined ? said he. By the laws of the State
where the contract was made. According to those
laws, and those only, can it be decided. Is this a
novelty? No; it is a principle in the jurisprudence

346 LIFE OF JOHN MARSHALL.
of this Commonwealth. If a man contracted a debt
in the East Indies, and it was sued for here, the
decision must be consonant to the laws of that coun-
try.' Such was the line of argument adopted by Marshall
in support of the Federal Constitution. His speeches
were evidently not premeditated ; but made on the
spur of the occasion, and in reply to objections brought
forward by his opponents. If not as comprehensive
in their scope as the speeches of Madison, they were,
nevertheless, vigorous, pointed, and adapted to the
end he had in view. They were, chiefly, in answer
to the arguments of Patrick Henry and George Mason.
How they were estimated by the former may be in
ferred from his brief, but generous eulogium. 'I have,'
said he, ' the highest veneration and respect for the
honorable gentleman, and I have experienced his can
dor on all occasions.'
After an earnest debate of twenty-five days, a de
bate illustrated by an extraordinary display of elo
quence and ability, the Convention accepted the Con
stitution by a majority of ten votes.. The result, it has
been thought, would have been different, had not the
news arrived, while the Convention was yet in ses
sion, that nine States had already given their voice in
its favor, and thus insured its success.
The Constitution adopted, we shall see, in the fol
lowing chapters, that Marshall gave an earnest sup
port to the government organized in accordance with
its provisions, and to the principles on which that gov
ernment was conducted by the Administrations of
Washington and Adams.

MEMBER OF VIRGINIA LEGISLATURE. 347

CHAPTER VII.
1788-1797.
MEMBER OF THE VIRGINIA LEGISLATURE.
The high professional reputation to which Marshall
had attained, seemed naturally to invite an exclusive
devotion of his talents to the labors of the Bar, A
narrowfortune and growing family were impelling mo-
lives to that line of conduct. Accordingly, he now
determined to relinquish public life, and adhere, for
the future, to his profession. But the opposition the
Constitution had already encountered in Virginia, and
the hostility that still existed against that instrument,
indicated that the government which was now to be
organized in pursuance of its provisions, would be
likely to meet with very lukewarm support from the
State Legislature, if the anti-Federalists should secure
an ascendency in that body. It was, therefore, the
obvious policy of the Federalists to effect, if possible,
a different result ; under such circumstances Marshall
was prevailed upon to forego his determination to quit
public life, and become a candidate for the Legisla
ture. He was elected, and continued to serve in that body
until the spring of 1791. The anti-Federalists, how
ever, had the majority, and sent to the Senate of the
United States, William Grayson and Richard Henry
Lee, who had opposed the Constitution, in preference

348 LIFE OF JOHN MARSHALL.
to Madison. and Pendleton, who had supported it. All
the leading measures of the Administration were freely
criticised and discussed in ithe Virginia Legislature,
and their tendency regarded with a jealous watchful
ness. Marshall, who bad the greatest confidence in the
wisdom of Washington, and naturally inclined to favor
a line of policy that would impart vigor and efficiency
to the new system, supported with all his powers those
measures which most excited the animadversion, and
aroused the hostility, of the party who had originally
opposed the Constitution as fraught with danger to
liberty, and now thought they perceived, in the action
of the governm.ent, the approaching realization of their
fears. The funding system, the assumption of the
State debts, and the creation of a national bank, were
regarded as violative of the powers conferred on the'
General Government, and leading directly to consoli
dation. These grave questions were reviewed, criti
cised, and discussed in the halls of the Virginia Legis
lature, with abilities equal to the topics, and the occa
sion. Marshall participated in these debates, and
asserted the constitutionality as well as the policy of
the measures thus assailed ; but the current was too
strong to be resisted. The predominant party in Vir
ginia were opposed to nearly every important measure
of Washington's Administration, and took no pains to
conceal their disapprobation and disgust.
In 1792, Marshall declined are-election, and for the
next three years was immersed in the business of his
profession. He was engaged, on one side or the
other, in nearly all the important causes in the State
and Federal Courts. These were, probabl}', the most
active ^ears of his professional life. But, extensive as
were his engagements at the Bar, it was impossible for

MEMBER OF VIRGINIA LEGISLATURE, 349
a man of his abilities, and avowed opinions, in the
stirring times in which he lived, to withdraw himself
entirely from politics. Assailed as was the domestic
policy of the government, its foreign policy was even
more fiercely denounced. The President's celebrated.
Proclamation of Neutrality' inflamed the elements of
discontent, stimulated the . zeal, and increased the
strength of the opposition. On this occasion, Marshall
carne forward in support of the President's course, and
at a meeting of. the citizens of Richmond obtained a
considerable majority. in fiivor of resolutions approving
it. But be, paid the usnal pehalty, rigorously inflicted
upon all who, with wbatever purity of motive, aictively
participate in political discussions ; he was assailed by
the opposite party with great bitterness. Bold re
proaches and witty malice were studiously employed
to weaken -bis influence, and detract from the merit
of. his arguments. He was denounced as an advocate
of aristocratic principles;; as a loyalist and an enemy
of republicanism., But these attacks failed of their
aim. in Richmond, where his character, political. sen
timents, and manner of life were well understood,, the
assaults upon him proved perfectly harmless.
In 1795, he was again elected a member of the State
Legislature ; but against his wishes, and. without his
consent. The circumstances, however, seemed to jus
tify this step. It was doubtful, so nearly equally were
parties dividedj whether the regular candidate of the
Federalists, an intimate personal friend of Marshall's,
could be elected. Accordingly, a poll was opened for
Marshall, while he was engaged in one of the Courts,
(notwithstanding he had declined being a candidate,
and declared that his feelings and honor were engaged
' Ante, vol. i., p. 390; and vol. ii., p. 168.

350 LIFE OF JOHN MARSHALL.
for his friend,) and he was again returned as a mem
ber of the Legislature.
The Jay treaty, as we have elsewhere seen, had, at
this time, created throughout the country an unpara-
lelled ferment and excitement.^ In Virginia, it was
attacked with unsparing zeal and bitterness. At a
meeting of the citizens of Richmond, at which the
venerable Chancellor Wythe presided, resolutions were
adopted, denouncing it 'as insulting to the dignity,
injurious to the interest, dangerous to the security,
and repugnant to the Constitution of the United
States.' At a subsequent meeting of the same citi
zens, Marshall introduced resolutions of a contrary
tenor, and supported them in a speech of great power.
His resolutions were adopted ; but, marked as was his
success on this occasion, it was in the Legislature that
he received the most gratifying proofs of the vigor and
effect of his arguments. There, both the expediency
and constitutionality of the treaty were warmly de
nied. Inasmuch as the power to regulate commerce
was bestowed on Congress, it was maintained, with
great confidence, that the Executive had no constitu
tional right to negotiate a commercial treaty. Mar
shall's reply to this position has been considered as
one of the most memorable displays of his genius. His
speech, however, was not reported; but the traditional
account is, that, for cogency of reasoning, and com
prehensive knowledge of the whole subject matter of
the debate, it was altogether admirable. He demon
strated so clearly the competency of the Executive to
make the treaty, that all objection to it on constitu
tional grounds was abandoned. And even the resolu
tion of the House approving the conduct of the Vir-
' Vol, i., pp. 412, 633.

MEMBER OF VIRGINIA LEGISLATURE. 351
ginia Senators in voting against the treaty, expressed
confidence in the patriotism and wisdom of the Presi
dent, and declared that it was not intended to censure
his motives in ratifying it. The fame of this great!
argument of Marshall's extended beyond the limits of
Virginia. It made his name familiar throughout the
country. When he visited Philadelphia a few months
after, to argue the British debt case,^ he was an object
of marked attention.
' I then became acquainted,' he says, in a letter to a
friend, ' with Mr. Cabot, Mr. Ames, Mr. Dexter, and
Mr. Sedgwick of Massachusetts, Mr. Wadsw^orth of Con
necticut, and Mr. King of New York. I was delighted
with these gentlemen. The particular subject [the
British treaty] which introduced me to their no
tice, was at that time so interesting, and a Virginian,
who supported, with any sort of reputation, the mea
sures 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 inti
mate with Mr. Ames, and could scarcely gain credit
with him, when I assured him that the appropriations
would be seriously opposed in Congress.' ^
The death of Mr. Bradford, the Attorney-General,
in the summer of 1795, gave Washington an opportu
nity to mark his appreciation of the character and
abilities of Marshall, by tendering him the vacant post.
• Ante, p. 310,
^ Story's Discourse, p. 40. See Marshall's Letter to Hamilton, of
April 25th, 1796, (Hamilton's Works, vol. vi.,) giving an account
of a public meeting in Richmond, at which a resolution was carried
declaring the validity of the treaty, and its binding effect on Con-

352 LIFE OF JOHN MARSHALL,
' The salary annexed thereto,' said the President's let-
terj 'and the prospect of a lucrative practice in this
city [Philadelphia], the present seat of the General
Goverhment, must be as well known to you, -better,
perhaps, than they are to me, and," therefore, I , shall
say nothing concerning them."" This offer he declined
upon the ground that it would interfere with his en
gagements at the Bar in Virginia.,
In the following summer, Washington again called
oipon Marshall to enter the public service, as successor
of Monroe at Paris; but he declined, on the ground that
the crisis of his affairs rendered it impossible for him
to leave the United States. 'Otherwise,' he added,
'such is my conviction of the importance of that duty
which you would confide to me, and, pardon me if I
add, of the fidelity with which I should attempt to
perform it, that I would certainly forego any consider
ation not decisive with respect to future fortunes, and
would surmount that just diffidence I have ever enter
tained of myself, to make an effort to convey truly
and faithfully to the Government of France those sen
timents which I have ever believed to be entertained
by that of the United States.'^ At this, time, he
thought his .determination to remain at the Bar unal
terable. 'My situation at the Bar,' said he, 'appeared
to me to be more independent, and not less honorable,
than any other; and my preference for it was decided.'^
In the next chapter, we shall see the occasion that in
duced him to change his determination, and first en
gaged him in the service of the General Government.
In the meantime he continued a member of the Vir
ginia Legislature ; but rarely participated in. the de-
' Washington's Writings, vol. xi., p. 62. August 25th, 1796.
' Ibid., p. 143. July 11th, 1796.
° Story's Discourse, p. 41.

MEMBER OF VIRGINIA LEGISLATURE. 353
bates, except to vindicate the measures of the Federal
Administration. One of these debates he has thus
described : — 'It was, I think,' says the Chief Justice,
'in the session of 1796, that-I was engaged in a debate,
which called forth all the strength and violence of
party. Some Federalist moved a resolution, expressing
the high confidence of the House in the virtue, patriot
ism, and wisdom of the President of the United States.
A motion was made to strike out the word wisdom. In
the debate the whole course of the Administration was
reviewed, and the whole talent of each party was
brought into action. Will it be believed, that the
word was retained by a very small majority ? A very
small majority of the Legislature of Virginia acknowd
edged the wisdom of General Washington !' ^
In the next chapter we shall view the course of
Marshall and his colleagues in their endeavors to ad
just the difficulties with France, and witness the ad
mirable temper which marked his conduct throughout
his disagreeable stay at Paris.
' Story's Discourse, p. 41.

Vol. IL — 23

354 LIFE OF JOHN MARSHALL.

CHAPTER VIII.
1797 — 1798.
ENVOY EXTRAORDINARY TO FRANCE.
We have seen, in the preceding chapter, that when
Monroe was recalled from France, for causes which wo
have elsewhere explained,' the vacant post was offered
to Marshall. When he declined it, the appointment was
conferred on Charles Cotesworth Pinckney. The result
of his mission we have already seen ; the French Gov
ernment not only refused to receive him, but finally
ordered him to leave the country. He then proceeded
to Amsterdam, and awaited instructions from home.
In this conjuncture, the Administration determined to
send out an Extraordinary Commission to renew nego
tiations with France, and thus, if possible, avoid the
alternative of war. Accordingly, on the 31st of May,
1797, President Adams nominated, as Envoys Extra
ordinary to that country, Charles Cotesworth Pinck
ney, John Marshall, and Francis Dana. The latter
declining the appointment, it was conferred on Elbridge
Gerry. Marshall accepted the post which was thus assigned
him with reluctance ; but the occasion was so interest
ing, and the exigency so great, that he did not feel at
liberty to decline it. He arranged his affairs at home
' Ante, Life of Ellsworth, p. 213.

ENVOY EXTRAORDINARY TO FRANCE. 355
with all convenient despatch, and by July was ready
to embark for Europe. On his departure from Rich
mond, he was attended, for several miles, by a large
cavalcade of his fellow-citizens, who, on this, as on all
occasions, invariably evinced the greatest attachment
to his person, and respect for his character. How^ever
assailed he might be by political opponents, and how
ever his political sentiments might be questioned, that
attachment and respect were never wanting.
He embarked at Pliiladelpbia for Amsterdam, in the
ship Grace, Captain Willis, on the 17th of July, 1797.
On the same day, the President, in a letter to Gerry,
thus describes him : — ' He is a plain man, very sensi
ble, cautious, guarded, and learned in the law of na
tions. I think you will be pleased with him."
Naturally, very great solicitude was felt as to the
reception that awaited him and his colleagues at Paris;
and that solicitude was increased by the long interval
which elapsed before any communication was received
from them. Owing to the delays incident to a win
ter's voyage, their first official letter did not reach the
Secretary of State until the 4th of March, 1798. That
letter dissipated all hope that they would be officially
recognized, or the objects of their mission be accom
plished. This mission constitutes a curious chapter in the
history of diplomacy, and the circumstances that
marked its progress and result are full of interest.
The Envoys arrived at Paris on the evening of Octo
ber 4th, 1797. The next day, verbally and unoffi
cially, they informed M. Talleyrand, the Minister of
Foreign Affairs, of their arrival, and desired to know
when he would be at leisure to receive one of their
' Adams' Works, vol. viii., p. 549.

356 LIFE OF JOHN MARSHALL.
Secretaries with the official notification. He appointed
the next day at two o'clock ; when their letter of cre
dence was duly presented to him. On the 8th, they
waited upon him at his house, where he kept his office.
He informed them that the Directory had required
him to make a report relative to the situation of the
United States with regard to France, which he was
then about, and which would be furnished in a few
days, when he would let them know what steps were
to follow. They asked if cards of hospitality were, in
the meantime, necessary. He said they were, and
should be delivered to them. The next day they
were sent, and in a style suitable to their official
character. Thus far appearances indicated that they would be
received, and the negotiation proceed ; but on the
14th, Major Mountflorence, Chancellor of the Ameri
can Consulate at Paris, informed General Pinckney
that he had had a conversation with Talleyrand's
private and confidential Secretary, who told him that
the Directory were greatly exasperated at some parts
of the President's speech at the opening of the late
session of Congress, and would require an explanation
of them from the American Ministers. In another
conversation, the Secretary informed Mountflorence
that M, Talleyrand had told him that it was probable
they would not have a public audience of the Direc
tory till their negotiation was finished ; that, in the
meantime, persons might be appointed to treat with
them, but they would report to Talleyrand, who would
have the direction of the negotiation.
On the 18th, M, Hottinguer, who had been de
scribed to General Pinckney, as a gentleman of con
siderable credit and reputation, called on the General,
and informed him that he had a message from M. Tal-

ENVOY EXTRAORDINARY TO FRANCE. 357
leyrand to communicate ; that he was sure M. Talley
rand had a great regard for America and its citizens ;
and was very desirous that there should be a recon
ciliation between the two countries. To accomplish
this, he was ready, if it was thought proper, to suggest
a plan, confidentially, which M. Talleyrand expected
would answer the purpose. General Pinckney said
he should be glad to hear it. M, Hottinguer replied,
that the Directory, and particularly two of them, were
exceedingly irritated at some passages of the Presi
dent's speech, and desired that they should be softr
tened ; that this step would be necessary previous to
their reception ; and besides this, a sum of money was
required for the pocket of the Directory, which would
be at the disposal of M. Talleyrand, and that a loan
would also be insisted on, M. Hottinguer said, these
measures acceded to, M, Talleyrand had no doubt that
the differences with France might be accommodated.
The particular passages of the President's speech that
had given offence he could not point out, nor the quan
tum of the loan, but the douceur for the Directory, he
said, was twelve hundred thousand livres, about
£50,000 sterling.
General Pinckney told him, that he and his col
leagues, from their arrival in Paris, had been treated
with great slight and disrespect ; that they wished for
peace with France, and had been entrusted with great
powers to accomplish it, on honorable terms; but with
regard to the propositions communicated by M. Hot
tinguer, he would not consider them before he had
disclosed them to his colleagues ; that having done so,
M, Hottinguer should hear from him.
On communicating to his colleagues the purport of
M. Hottinguer's visit, it was agreed, that General
Pinckney should request him to make his propositions

358 LIFE OF JOHN MARSHALL.
to them all, and, to avoid mistakes or misapprehen
sion, reduce the heads of them to writing. Accord
ingly, on the next day, General Pinckney called on M.
Hottinguer, who consented to see the Envoys in the
evening. He came at the appointed time, and left
with them a set of propositions in writing. He had
informed General Pinckney, however, that his com
munication was not directly with M. Talleyrand, but
through another gentleman, in whom M, Talleyrand
had great confidence. This afterwards proved to be
M. Bellamy, of Hamburg,
On the morning of the 20th, M, Hottinguer called,
and informed the Envoys, that M, Bellamy, the confi
dential friend of M, Talleyrand, would see them him
self, and make the necessary explanations. He came
in the evening, and was received in General Marshall's
room. He mentioned the favorable impressions of M.
Talleyrand towards the United States, impressions
which were made by the kindness and civilities he
had personally received while there ; and that he was
solicitous to repay those kindnesses, and was willing
to aid the Envoys in their negotiatiation by his good
offices with the Directory, who were extremely irri
tated on account of passages in the President's speech,
and who had neither acknowledged nor received them,
and, consequently, had not authorized M, Talleyrand
to have any communications with them. In conse
quence, he could not see them himself, but had autho
rized M, Bellamy to communicate to them certain pro
positions, and receive their answers. But, in the same
breath, as it were, he declared that he was no diplo
matic character, was clothed with no authority, and
was merely the friend of M. Talleyrand, and trusted
by him. He then pointed out the objectionable pas
sages of the President's speech, and made a series of

ENVOY EXTRAORDINARY TO FRANCE. 359
propositions as the basis of the negotiation. These
propositions referred to certain disavowals and repara
tions which were to be preliminary to a treaty. The
treaty itself was to place France, with respect to the
United States, on the same footing as they stood with
England in consequence of the Jay Treaty. It was
also to contain a secret article stipulating a loan to
France. M. Bellamy dilated very much on the keenness of
the resentment the President's speech had produced,
and expatiated largely on the satisfaction indispens
ably necessary as a preliminary to negotiation. 'But,'
said he, ' gentlemen, I will not disguise from you, that
this satisfaction being made,, the essential part of the
treaty remains to be adjusted. II faut de Targent — il
faut heaucoup d'argent; you must pay money, you
must pay a great deal of money.' The next morning
M. Bellamy and M. Hottinguer breakfasted with the
Envoys at Mr. Gerry's, The former did not come
until ten o'clock, having passed the morning with M,
Talleyrand, He represented that both M, Talleyrand
and himself were extremely sensible of the pain the
Envoys must feel in disavowing the obnoxious pas
sages of the President's speech ; but that they must
consider such disavowal as an indispensable prelimi
nary to their reception, unless they could find means
to change the determination of the Directory. He
said he was not authorised to suggest those means;
¦ but, as a private individual, he would express the
opinion that, with money, they would be able to succeed.
He stated the sum which he believed would be satisfac
tory, and an eligible mode of giving it. There were, he
said, thirty-two millions of Dutch rescriptions, worth
ten shillings in the pound, which might be assigned to
the United States at twenty shillings in the pound. Tn

360 LIFE OF JOHN MARSHALL.
the end they would lose nothing, for, after a peace, the
Dutch Government would certainly repay them the
amount. Hence, he said, the only operation of the
measure would be an advance to France of thirty-two
millions, on the credit of the Government of Holland,
When asked if the douceur to the Directory must be
in addition to this sum, he answered in the affirma
tive. The Envoys told him that their powers were ample
to negotiate a treaty ; but the proposition of a loan in
any form exceeded the limits of their instructions.
That one of their number would return to the United
States in order to consult the Government respecting
it, provided the Directory would suspend further cap
tures of American vessels, and proceedings on those
already captured, &c. At this offer M. Bellamy was
evidently disappointed. He said they treated the pro
position of a loan as if it came from the Directory,
whereas it did not proceed from them, nor even from
M. Talleyrand, but was only a suggestion from him
self, as a substitute to be proposed by the Envoys, in
lieu of the painful disavowal that the Directory had
determined to demand of them. They replied that
they understood the matter perfectly ; that the propo
sition in form was to come from them, but, substan
tially, it proceeded from the Minister. M. Bellamy
expressed himself vehemently on the resentment of
France ; complained that the Envoys, instead of pro
posing a substitute for the reparations demanded of
them, were stipulating conditions to be performed by
the Directory itself; that he could not take charge of
their offers, and that the Directory would persist in
demanding a disavowal of the offensive passages of the
President's speech. They replied, that they could not
help it; that the Directory must determine what the_

ENVOY EXTRAORDINARY TO FRANCE, 361
honor and interests of France required them to do;
but for themselves they must guard the honor and in
terests of the United States, That the idea of dis
avowing the President's speech could not be treated
by them in a serious light; that an attempt to do it
would merely make them ridiculous to the Govern
ment and people they represented, M, Bellamy said,
they certainly would not be received, and seemed to
shudder at the consequences.
About the 27th of October, news reached Paris that
the definitive articles of peace between France and
Austria had been signed, and on that day the Envoys
received another visit from M, Plottinguer, He said
some proposals had been expected from them ; that
the Directory were becoming impatient, and would
take a decided course towards America, unless they
could be softened. He spoke of the different position
France occupied in consequence of the peace, as war
ranting the expectation of a change in the system of
the Envoys. They replied that that position they had
anticipated, and it would not in any degree affect their
conduct. He urged that, since the peace, the Directory
had taken a higher and more decided tone with respect
to the United States and all other neutral nations than
ever before, and were determined that all nations
should aid them or be treated as enemies. They
answered, that they had anticipated as much when
they refused the propositions that had been made to
them. M. Hottinguer, after expatiating on the power
and violence of France, returned once more to the sub
ject of money. Said he, 'Gentlemen, you do not
speak to the point; it is money. It is expected that
you will offer money.' They said they had already
given a very explicit answer to that point. ' No,' said
he, 'you have not. What is your answer?' They

362 LIFE OF JOHN MARSHALL.
replied, 'It is 'no ; no ; 'not a sixpence.' The conversa
tion continued for nearly two hours ; and the public
and private advance of money was pressed and re
pressed in a variety of forms. M. Hottinguer then
said he would communicate, as nearly as he could, the
substance of what had passed, either to the Minister,
or to M. Bellamy, who would make the communica
tion. Thus far the Envoys had no proof whatever that
M, Hottinguer and M, Bellamy were acting by direc
tion of M, Talleyrand, except their own assertions to
that effect, the nature of their propositions, and the
respectability of their characters. These left no doubt
on their minds that they were authorised to confer
with them. With M, Talleyrand himself they had
held no direct communication, and had seen him but
once, and that only on a formal occasion, and for a few
moments. We shall now see that M, Talleyrand
directly committed himself, and furnished conclusive
evidence that the propositions and suggestions, which
had been made to the Envoys, proceeded directly from
himself. On the 22d of October, M. Hautval, a French gen
tleman of respectable character, 'informed Mr, Gerry
that M. Talleyrand had expected to have seen the
American Ministers frequentl}' in their private capaci
ties, and to have conferred with them individually on
the objects of their mission ; and had authorised him
to make this communication to Mr, Gerry. The latter
sent for his colleagues, and a conference was held with
M. Hautval on the subject. Pinckney and Marshall
said, as they were not acquainted with M. Talleyrand,
they could not, with propriety, call on him; but,
according to the custom of France, he might expect
this of Gerry from a previous acquaintance in the

ENVOY EXTRAORDINARY TO FRANCE. 363
United States. The next day Gerry, with great reluc
tance, however, called on M. Talleyrand, in company
with M. Hautval ; but the Minister not being at his
office, appointed the 28th for the interview. On that
occasion, after the first introduction, M, Talleyrand
began the conference. He said the Directory had
passed an arrete, in which they demanded of the En
voys an explanation of some parts of the President's
speech at the opening of the extra session of Congress,
and a reparation for other parts. He said he was sen
sible that difficulties would exist on the part of the
Envoys relative to this demand ; but on their offering
money he thought he could prevent the effect of the
arrete. Mr. Gerry requested M. Hautv.al to inform
the Minister that the Envoys had no power to offer
money. In that case, replied M, Talleyrand, they can
take a power on themselves ; and proposed that they
should make a loan, Mr, Gerry, in answer to the ob
servations of M. Talleyrand, said, that the uneasiness
of the Directory respecting the President's speech was
unconnected with the object of the mission; that they
had no instructions with regard to it, and no powers
whatever to make a loan. If it was deemed expedient,
however, one of their number could return for instruc
tions on that point, provided the other objects of the
negotiation could be discussed and adjusted. Mr,
Gerry then expressed his wish that M, Talleyrand
would confer with his colleagues, M, Talleyrand, in
answer, said, he should be glad to confer with the
other Envoys individually, but that this matter about
the money must he settled directly, without sending to
America; that he would not communicate the arrete
for a week ; and that, if they could adjust the diffi
culty respecting the speech, an application would, ne
vertheless, go to the United States for a loan.

364 LIFE OF JOHN MARSHALL.
The reader will not fail to observe the complete cor
respondence between M. Talleyrand's propositions to
Mr. Gerry, and the propositions made by M. Hottin
guer and M. Bellamy. The money which M. Talley
rand said must be settled directly, referred to the dmir
ceur of £50,000, and he knew full well that the credit
of the Envoys could command it. Indeed, a mercan
tile house, one of whose members introduced M. Hottin
guer to General Pinckney, had offered to answer their
draughts; a circumstance, doubtless, well known to
M. Talleyrand.
Another visit from M. Hottinguer and M. Bellamy
succeeded Mr. Gerry's interview with Talleyrand. The
same propositions that had hitherto formed the burden
of their communications, were substantially repeated,
and enforced by high and threatening language. If the
offers of Talleyrand were rejected, and war ensued, the
fate of Venice might befall the United States, &c.
' Perhaps,' said M. Bellamy, ' you believe that, in re
turning, and exposing to your countrymen the unrea
sonableness of the demands of this Government, you
will unite them in their resistance to those demands.
You are mistaken. You ought to know that the diplo
matic skill of France, and the means she possesses in
your country, are sufficient to enable her, with the
French party in America, to throw the blame which
will attend the rupture of the negotiations on the Fede
ralists,, as 3'ou term yourselves, but on the British
party, as France terms you ; and you may assure your
selves this will be done.'
Such was the haughty style adopted by these unoffi
cial agents, and it produced its natural result. The
Envoys now determined to hold no more indirect in
tercourse with the French Government; and nothing
but an anxious solicitude to preserve peace with

ENVOY EXTRAORDINARY TO FRANCE. 365
France induced them to remain longer at Paris, unre-
ceived as they were, and treated with personal neglect
and contempt. They informed the agents of M. Tal
leyrand that they would receive no more propositions
from persons without acknowledged authority to treat
with them ; but, notwithstanding this, frequent and
urgent attempts were made to inveigle them into an
unofficial negotiation,
Beaumarchais, through John A. Chevallie, his agent
at Richmond, had employed Marshall as his advocate
in a suit against the State of Virginia for military
stores, &c., furnished during the Revolution. Very
naturally, Beaumarchais invited Marshall and his col
leagues to dine with him, and they reciprocated the
attention. Beaumarchais was an intriguer, almost by
profession, and an exceedingly clever one. The sort
of intimacy existing between him and the Envoys was
a source of hope to M. Bellamy. M. de Beaumarchais
entered into his views at once. He had obtained a
judgment for one hundred and forty-five thousand
pounds sterling in his suit against Virginia; but from
this judgment an appeal was pending, and the final
result was very uncertain.
On the 17th of December, M. Bellamy informed
Marshall that Beaumarchais had consented, provided
his claim could be established, to sacrifice £50,000
sterling of it, as the private gratification which had
bee,n required of the Envoys, so that the payment of
that sum would not be any actual loss to the Ameri
can Government. But the Envoys considered this
proposition as a renewal of the old system of indirect,
unauthorized negotiation, and would not entertain it.
' Having been originally the counsel of M, de Beau
marchais,' says Marshall, ' I had determined, and so I

366 LIFE OF JOHN MARSHALL,
had informed General Pinckney, that I would not, by
my voice, establish any agreement in his favor; but
that I would positively oppose anj' admission of the
claim of any French citizen, if not accompanied with
the admission of the claims of the American citizens
for property captured and condemned for want of a
r6le d' equipage.'^
On the 1 7th of December, Mr, Gerry accompanied
M. Bellamy on a visit to Talleyrand, who received
them politely. Mr. Gerry observed to him, that M.
Bellamy had stated to him that morning some propo
sitions as coming from M, Talleyrand (referring to the
gratuity of £50,000 sterling, and the purchase of the
Dutch rescriptions, as the means of restoring friendship
between the two countries); respecting which he could
give no opinion. M. Talleyrand said the information
M. Bellamy had given him was just, and might always
be relied on ; but that he would reduce to writing his
propositions, which he did, and after showing them to
Mr, Gerry, he burnt the paper. His propositions related
to the purchase of the Dutch rescriptions; but M. Tal
leyrand, on this occasion, did not mention the gratuity.
That he left to the management of his agents.
In this stage of the business, the Envoys came to
the determination to prepare a letter to M. Talleyrand,
stating the object of their mission, and discussing the
subjects of difference between the two nations, in the
same manner as if they had actually been received ;
and to close the letter with requesting the Government
to open the negotiation with them, or grant them their
' Marshall's Journal. Wait's American State Papers, vol. iii., p.
214. We should observe that the despatches of the Envoys detailing
the history of their mission were prepared, for the most part, by Mar
shall; and from them the narrative in the text is chiefly derived.

ENVOY EXTRAORDINARY TO FRANCE. 367
passports. This letter was prepared by Marshall, and
has always been regarded as one of the most admira
ble of our State papers. For clearness of statement,
cogency of argument, and dignified moderation, it de
serves unqualified praise,' Talleyrand, in his reply
of the 18th of March, complained that it reversed the
known order of facts, ' so that it would appear,' he
said, 'from that exposition, as partial as unfaithful,
that the French Republic has no real grievance to sub
stantiate, no legitimate reparation to demand, whilst
the United States should alone have a right to com
plain, should alone be entitled to claim satisfaction,'
This testimony to the ability with which the vindica
tion of the United States was conducted, was rather
enhanced by the failfire of Talleyrand to substantiate
the demerits which he attributed to it. Indeed, if the
United States had the right, consistently with their
treaty of alliance with France, to observe a fair and
honest neutrality, and that right, said Marshall, 'is
not recollected ever to have been questioned, and is
believed not to admit of doubt,' then all the general
charges of an unfriendly disposition, made against them
by M, Talleyrand, really amounted to nothing, because
the facts which he adduced to support them grew in
evitably out of that situation.
On the 18th of January, 1798, the French Govern
ment passed a decree subjecting to capture all neutral
vessels laden in part or whole with the manufactures
or productions of England or its possessions. This de
cree convinced the Envoys that it was entirely imprac
ticable to effect the objects of their mission. They
determined, therefore, to write Talleyrand another let-
¦ See this letter in Wait's State Papers, vol. iii., p. 219. We re
gret that our space forbids us to make extracts from it. It was dated
January 17th, 1798.

368 LIFE OF JOHN MARSHALL.
ter, state their objections to the decree, and announce
their purpose to return to the United States. This
letter was prepared, but, before sending it, and de
manding their passports, they deemed it expedient to
know of Talleyrand if he had any reply to make to
their previous letter, which thus far remained unno
ticed. He informed their Secretary, on the 19th of
February, that he had no answer to make, as the
Directory had taken no order on the subject; but when
they did, the Envoys should be informed of it. Anxious
to hear explicitly from Talleyrand before sending their
final letter, whether they possessed the means to accom
modate the differences with France, they solicited a
personal interview with him. He appointed a day to
receive them. Accordingly, they waited upon him.
The particulars of this interview it is unnecessary to
state. The substance of what M, Talleyrand said was, that
the Directory would require some proof of a friendly
disposition on the part of the United States previous
to a treaty, and he alluded very intelligibly to a loan
as the means of furnishing that proof To this it was
replied that they had no power to make a loan ; that
such an act would violate the neutrality of the United
States, and involve them in war with Great Britain,
Talleyrand, in answer, said that persons in their situa
tion must often use their discretion, and exceed their
powers for the public good. That a loan could be so
disguised, as effectually to prevent any interference
with the neutral position of the United States; that
if they desired to effect the thing, they would have no
difficulty in finding the means.
Mr. Gerry had already received a proposition from
Talleyrand's Secretary, to stipulate a loan to the
French Government now, payable after the war, in

ENVOY EXTRAORDINARY TO FRANCE. 369
supplies of American produce for St. Domingo, and the
French islands. He was in favor, it would seem, of
negotiating a treaty on the basis of such a loan, which
he thought might be so guarded, as not to violate our
neutrality.' Accordingly, he now observed, that Dutrimond had
suggested a loan of this character, and Talleyrand sig
nified that the proposed mode of payment was a means
of covering it. If they were only sincere in their wish,
said he, it would be easy to bring about the end. Mar
shall told Talleyrand, among other things, that for
the United States to furnish money to France was, in
fact, to make war ; which they could not consent to
do; that they could not make a stipulation of the
kind, because it would absolutely transcend their
powders ; that, with respect to supplies to St. Domingo,
no doubt could be entertained that American mer
chants would furnish them very abundantly, if France
would permit the commerce ; and a loan really pay
able after the war might then be negotiated.^ But

' Federal Administrations, vol. ii., p. 35.
' As the commerce would be a perfectly lawful one with respect to
the belligerents, Marshall's idea seems to have been, although not
very clearly expressed, that a loan to France, payable after the war,
and limited to a specific object, namely, to pay for these very sup
plies, might be negotiated with perfect propriety. It was not furnish
ing France with the means of raising money for immediate use, but
enabling her at a definite time, viz., after the war, to pay for supplies
which it was lawful for the merchants of a neutral nation to send to
her ports.
Gerry, on the contrary, as it would appear, was in favor of stipu
lating a loan to France, subject only to two conditions, namely,
that it should be payable after the war, and in supplies. If France
could raise money on such a loan for present use, she was at liberty
to do so. However disguised such a stipulation might be, it would,
without doubt, have violated the neutral position of the United
States. The only difference between furnishing the loan in money
Vol. IL — 24

370 LIFE OF JOHN MARSHALL.
Talleyrand insisted that, to prove the friendship of the
United States, there must be some immediate aid, or
something which might avail France.
He complained that the Envoys had not visited
him, and said that, because the Directory had not
given them an audience, was no reason why they
should not have seen him often, and endeavored to
remove the obstacles to a mutual approach. Marshall
told him that their seeing the Directory, or not, was
an object of no sort of concern to them ; that they
were perfectly independent with regard to it; but
they conceived that, until their public character was
in some degree recognized, and they were treated as
the Ministers and representatives of their Government,
they could not take upon themselves to act as Minis
ters ; because, by doing so, they might subject them
selves to some injurious circumstance to which they
could not submit.
At a subsequent interview. General Pinckney told
him that the Envoys considered the propositions he
had suggested to them when they had previously seen
him, as substantially the same as had been made to
them by M. Hottinguer and M. Bellamy, and they had
no power to accede to them. M. Talleyrand, without
at all disavowing M. Hottinguer and M. Bellamy, pro
ceeded to argue that it would be no departure from
neutrality, to stipulate a loan after the war; but Mar
shall replied that any act of the American Govern
ment, on which one of the belligerent powers could
raise money for immediate use, would be furnishing
aid to that power, and would be taking part in the
war; that he could not say what his Government
and in supplies, so far as it might affect France, would be, that she
could raise money more readily and advantageously in the former case
than in the latter.

ENVOY EXTRAORDINARY TO FRANCE. 371
would do if on the spot, but he was perfectly clear
that, without additional orders, they could not do what
France desired.
About two weeks after this last interview, namely,
on the 18th of March, M. Talleyrand transmitted to
the Envoys his answer to their letter of the 17th of
January, which we have described on a previous page.
He said it was disagreeable to be obliged to think that
the instructions, under which they acted, had not been
drawn up with the sincere intention of attaining paci
fic results ; ' because, far from proceeding, in their me
morial, upon some avowed principles and acknowledged
facts, they have inverted and confounded both, so as
to be enabled to impute to the Republic all the mis
fortunes of a rupture, which they seem willing to pro
duce by such a course of proceedings. It is evident
that the desire, plainly declared, of supporting, at
every hazard, the treaty of London, which is the prin
cipal grievance of the Republic, of adhering to the
spirit in which this treaty was formed and executed,
and of not granting to the Republic any of the means
of reparation, which she has proposed, through the
medium of the undersigned, have dictated those in
structions.' ' The undersigned does not hesitate to
believe, that the American nation, like the French
nation, sees this state of things with regret, and does
not consider its consequences without sorrow.' ' It is,
therefore, only in order to smooth the way of discus-
bions, that he declares to the Commissioners and En
voys Extraordinary, that, notwithstanding the kind
of prejudice which has been entertained with respect
to them, the Executive Directory is disposed to treat
with that one of the three, whose opinions, presumed
to be more impartial, promise, in the course of the ex
planations, more of that reciprocal confidence, Avhich

372 LIFE OF JOHN MARSHALL.
is indispensable.' The Minister intended, by this lan
guage, to designate Gerry, whose views respecting a
loan were supposed to be more favorable to France
than those of his colleagues.
To this letter of M. Talleyrand, the Envoys pre
sented a reply on the 3d of April. It proceeded from
the pen of Marshall, and is characterized by the same
ability, candor, and moderation, that distinguished his
first letter. ' You contend, citizen Minister,' say the
Envoys, 'that the priority of complaint is on the side
of France, and that those measures, which have so in
jured and oppressed the people of the United States,
have been produced by the previous conduct of their
Government. To this the undersigned will now only ob
serve, that if France can justly complain of any act of
the Government of the United States, whether that
act be prior or subsequent to the wrongs received by
that Government, a disposition and a wish to do in
the case what justice and friendship may require, is
openly avowed, and will continue to be manifested.'
A full and searching reply to all the complaints
urged against the United States by M. Talleyrand, de
monstrates how insubstantial was the basis upon which
they rested. The reply to two of Talleyrand's specifi
cations of an unfriendly disposition on the part of the
United States, we shall venture, at the risk of some
little prolixity, to quote at length. M. Talleyrand,
in pointing out the Jay Treaty as an object of com
plaint on the part of France, said, that the small mar
jority by which it was sanctioned in the two Houses
of Congress, and the number of respectable voices
raised against it in the nation, deposed honorably in
favor of the opinion which the French Government
entertained of it.

ENVOY EXTRAORDINARY TO FRANCE. 373
'You must be sensible, citizen Minister,' was the
reply, ' that the criterion by which you ascertain the
merits of the instrument in question, is by no means
infallible, nor can it warrant the inference you draw
from it. In a republic like that of the United States,
where no individual fears to utter what his judgment
or his passions may dictate, where an unrestrained
press conveys alike to the public eye the labors of vir
tue, and the efforts of particular interests, no subject
which agitates and interests the public mind can unite
the public voice, or entirely escape public censure. In
pursuit of the same objects a difference of opinion will
arise in the purest minds, from the different manner
in which those objects are viewed ; and there are situ
ations in which a variety of passions combine to silence
the voice of reason, and to betray the soundest judg
ments. In such situations, if the merit of an instru
ment is to be decided, not hy itself, but by the appro
bation or disapprobation it may experience, it would
surely be a safer rule to take as a guide the decision
of a majority, however small that majority may be,
than to follow the minority. A treaty, too, may be
opposed as injurious to the United States, though it
should not contain a single clause which could preju
dice the interests of France. It ought not to be sup
posed that a treaty would, for that reason, be offensive
to this Republic. ... It is considered as having been
demonstrated, that this treaty leaves the neutrality of
the United States, with respect both to France and
England, precisely in its former situation, and that it
contains no concessions which are either unusual, or
derogatory, from their alliance with this Republic.
But if, in forming this judgment, the American Gov
ernment has deceived itself, still it ought to be remem
bered that it has ever manifested a readiness to place

374 LIFE OF JOHN MARSHALL.
France on the footing of England, with respect to the
articles complained of
Another allegation of M. Talleyrand was, ' that the
journals known to be indirectly under the control of
the Cabinet, have redoubled their invectives and calum
nies against the Republic, its magistrates and its En
voys ; and that pamphlets openly paid for by the
Minister of Great Britain have reproduced, under
every form, those insults and calumnies, without
having ever drawn the attention of the Government
to a state of things so scandalous, and which it might
have repressed.' The Envoys replied thus : —
' The genius of the Constitution, and the opinions
of the people of the United States, cannot be over
ruled by those who administer the Government.
Among those principles deemed sacred in America —
among those sacred rights considered as forming the
bulwark of their liberty, which the Government con
templates with awful reverence, and would approach
only with the most cautious circumspection, there is
no one, of which the importance is more deeply im
pressed on the public mind, than the liberty of the
press. That this liberty is often carried to excess, that
it has sometimes degenerated into licentiousness, is
seen and lamented ; but the remedy has not yet been
discovered. Perhaps it is an evil inseparable from the
good with which it is allied; perhaps it is a shoot
which cannot be stripped from the stalk, without
wounding vitally the plant from which it is torn.
However desirable those measures might be, which
might correct without enslaving the press, they have
never yet been devised in America, No regulations
exist which enable the Government to suppress what

ENVOY EXTRAORDINARY TO FRANCE. 375
ever calumnies and invectives any individual may
choose to offer to the public eye ; or to punish such
calumnies and invectives, otherwise than by a legal
prosecution in courts, which are alike open to all who
consider themselves as injured. Without doubt, this
abuse of a valuable privilege is matter of peculiar re
gret when it is extended to the Government of a
foreign nation. The undersigned are persuaded, it
never has been so extended with the approbation of
the Government of the United States. Discussions
respecting the conduct of foreign powers, especially in
prints respecting the rights and interests of America,
are unavoidably made in a nation where public mea
sures are the results of public opinion, and certainly
do not furnish cause for reproach ; but it is believed
that calumny and invective have never been substi
tuted for the manly reasoning of an enlightened and
injured people, without giving pain to those who ad
minister the affairs of the Union, Certainly this
offence, if it be deemed by France of sufficient magni
tude to be worthy of notice, has not been confined to
this Republic, It has been still more profusely lav
ished on its enemies, and has even been bestowed with
an unsparing hand on the Federal Government itself
Nothing can be more notorious than the calumnies and
invectives wdth which the wisest measures, and the
most virtuous characters of the United States, have
been pursued and traduced. It is a calamity occasioned
by, and incident to, the nature of liberty, and which can
produce no serious evil to France, It is a calamity
occasioned neither by the direct nor indirect influence
of the American Government. In fact, that Govern
ment is believed to exercise no influence over any
press. ' You must be sensible, citizen Minister, with how

B76 LIFE OF JOHN MARSHALL.
much truth the same complaint might be urged on the
part of the United States. You must know well, what
degrading and unworthy calumnies against their Gov
ernment, its principles and its officers, have been pub
lished to the world by French journalists and in
French pamphlets. That Government has even been
charged with betraying the best interests of the na
tion, with having put itself under the guidance, nay,
more, with having sold itself to a foreign court. But
these calumnies, atrocious as they are, have never
constituted a subject of complaint against France.
Had not other causes, infinitely more serious and
weighty, interrupted the harmony of the two repub
lics, it would still have remained unimpaired, and the
mission of the undersigned would never have been
rendered necessary,'
To the suggestion of M, Talleyrand that the Execu
tive Directory was disposed to treat with one of the
Envoys, they answered that no one of them was autho
rized to take upon himself a negotiation evidently in
trusted, by the tenor of their powers and instructions,
to the whole ; nor could any two of them propose to
withdraw themselves from the task committed to
them by their Government, whilst a possibility re
mained of their performing it. They concluded their
letter by requesting that, if they had failed to dissi
pate the prejudices which had been conceived against
them, and it should be the will of the Directory to
order passports for the whole, or any number of them,
M, Talleyrand would accompany such passports with
letters of safe conduct, which would protect the ves
sels in which they might respectively sail, from French
cruisers. It was, doubtless, the hope and expectation of M.

ENVOY EXTRAORDINARY TO FRANCE. 377
Talleyrand that Pinckney and Marshall would volun
tarily leave Prance, upon receiving his letter of the
18th of March, in which he made the offensive distinc
tion between them and their colleague Gerry, on the
ground that the ' opinions' of the latter were more
' impartial' than theirs. In a letter to Gerry, of April
3d, he said, 'I suppose. Sir, that Messrs. Pinckney and
Marshall have thought it useful and proper, in conse
quence of the intimations which the end of my note of
the 1 8th of March last presents, to quit the territory
of the Republic' As the Envoys, however,' had pre
viously made a conditional application for their pass
ports, this hint to them was quite unnecessary. The
truth is, the Directory wished to get rid of Pinckney
and Marshall, but, at the same time, to avoid the
odium of sending them away. Having done all they
could, consistently with self-respect and the honor of
their country, to accomplish the objects of their mis
sion, and having failed, without any fault on their
part, they weire anxious to return to the United
States, But they would not leave Paris on the mere
intimation of the French Minister, nor without those
protections which the law of nations entitled them to
demand, Marshall told Talleyrand that this was not the
manner in which a foreign Minister ought to be
treated. He replied that Marshall was not a foreign
Minister, but was to be considered as a private Ameri
can citizen; and must obtain his passports, like others,
through the Consul, To this it was answered, that he
was a foreign Minister, and that the French Govern
ment could not deprive him of that character, which
was conferred on him, not by Talleyrand, but by the
United States; and, though the Directory might refuse
to receive or to treat with him, still his country had

378 LIFE OF JOHN MARSHALL.
clothed him with the requisite powers, which he held
independently of France ; that if he was not acceptable
to the French Government, and, in consequence, they
determined to send him away, still he ought to be sent
away like a Minister ; that he ought to have his pass
ports, with letters of safe conduct, which would protect
him from the cruisers of France. Talleyrand replied,
that, if Marshall wished for a passport, he must give
in his name, stature, age, complexion, &c., to the Ame
rican Consul, who would obtain one for him; that,
with respect to a letter of safe conduct, it was unne
cessary, as no risk from the cruisers would be in
curred.^ Treated with studied indignities, Pinckney and Mar
shall, nevertheless, persisted in their demands, and
passports were finally sent to them. The latter left
Paris on the 12th of April, and France on the 16th;
but General Pinckney obtained permission, with great
difficulty, however, to remain for two or three months,
on account of the critical state of his daughter's health.
Gerry, who, according to Talleyrand, had manifested
'himself more disposed to lend a favorable ear to every
thing which might reconcile the two Republics,' was
induced, by threats of immediate war against the
United States, to separate from his colleagues, and
stay in Paris. He steadily refused, however, to enter
into a formal negotiation, and in August sailed for the
United States. With fair intentions, doubtless, his
conduct, nevertheless, was marked by several instances
of weakness, and provoked severe criticisms.
The despatches of the Envoys, containing the facts
narrated in this chapter, were published in the United

' Marshall's Journal. Wait's American State Papers, vol. iii,, p.
394.

ENVOY EXTRAORDINARY TO FRANCE, 379
States, and republished in England. They reached
Paris the latter part of May, and, naturally enough,
attracted eager attention. Talleyrand hastened to dis
sipate the impressions they were calculated to make.
Col. Pickering, the Secretary of State, had substituted
the initials X. Y. Z. for the names of M. Hottinguer,
M, Bellamy, and M, Hautval, in consequence of a pro
mise by the Envoys that they should, in no event, be
made public, Talleyrand affected an entire ignorance
of the persons thus designated, and, with cool effrontery,
addressed a note to Mr, Gerry, requesting their names.
' I cannot observe without surprise,' he said, ' that in
triguers have profited of the insulated condition in
which the Envoys of the United States have kept
themselves, to make proposals and hold conversations,
the object of which was evidently to deceive you.'
And this was addressed to Mr. Gerry, who had Tal
leyrand's own assurance, that M. Bellamy might always
be relied on; to Mr. Gerry, who bad heard the propo
sitions of the agents substantially repeated by the
Minister, and was present when General Pinckney
told hiin that his suggestions were considered by the
Envoys as, in effect, the same that had been made by
M. Hottinguer and M. Bellamy, the men he now
styled intriguers, but then did not venture to dis
avow.' On the 7th of June, The Redacteur, the official ga
zette, contained Talleyrand's observations on the de
spatches of the Envoys. They were drawn up with
infinite art; and were calculated to produce an im
pression favorable to the purity of the French Direc
tory. He described the despatches as a ' deplorable
monument of credulity and contradictions,' and a pro-

Ante, pp. 370.

380 LIFE OF JOHN MARSHALL.
vocation ' visibly suggested by the British Govern
ment.' Pinckney and Marshall, he said, manifested
against France prejudices brought from America, or
imbibed from the nature of the connections which they
lost no time in forming at Paris ; but Gerry had an
nounced more impartiality. 'From this ill-suited
union, which disclosed dispositions not very concilia
tory, there must needs result, and there has, in fact,
resulted a crooked and embarrassed career on the part
of those Commissioners; hence their constant aversion
to do what might reconcile, their eagerness to write
what might disgust.' 'To come at some accommodar
tion, some friendly explanation, frequent communica
tions with the Minister of the Exterior were necessary.
The latter complained publicly that he did not see
them, and they avowed that he caused them to be
often informed of this reproach ; but two of the Com
missioners, shielding themselves under ceremony, re
fused to comply with the desire. Mr. Gerr}', at length,
resolved to go, spoke twice with the Minister; ....
said but little ; and did not venture to decide on any
thing.' In the meantime, says Talleyrand, they
thought themselves bound to transmit to the President
a very voluminous account of their negotiation ; an
account necessarily filled 'with the despicable manoeu
vres of all the intriguers.' ' It will be for ever incon
ceivable, that men, authorized to represent the United
States near the French Republic, could have been for
an instant deceived by manoeuvres so evidently coun
terfeit, and that there should exist a temptation to
convert the error in this respect into bad faith.'
We have not space to follow the ingenious turns
and cool assurance of Talleyrand, through this curious
performance. So disguised are his artifices, and so
bold his criminations, that one is almost inclined to

ENVOY EXTRAORDINARY TO FRANCE. 381
believe that that the Envoys had been ' most strangely
deceived' by ' the incoherent prating of two intriguers.'
It is only by again recurring to the facts that the
reader is disabused of the impression that M. Talley
rand is a martyr in the cause of honor and innocence.
Apprehensions were entertained that the Envoys
might remain in France until after the arrival there
of their despatches. ' In that case,' wrote Cabot to
Wolcott, ' they must give up their lives, or contradict
their communications, or, according to the order of the
day, pay a deal of money." But Pinckney had left
Paris on the 19th of April, Gerry it suited the Direc
tory to treat with a show of civility, and Marshall
arrived at New York on the 17th of June. He found
a high and general indignation among the people at
the treatment himself and colleagues had received at
Paris. He was received, wherever he appeared, with
warmth and enthusiasm. These demonstrations Jef
ferson, naturally enough, viewed with extreme jea
lousy. The late events had visibly increased the
strength of the Federalists, and diminished that of
the Republicans. In a letter to Madison, he mentions
the arrival of Marshall at Ne\y York, says that he has
postponed his own departure from Philadelphia, in
order to see if that circumstance would produce any
new projects, and thus proceeds : — ' No doubt he
there received more than hints from Hamilton as to
the tone required to be assumed, yet I apprehend he is
not hot enough for his friends. Livingston came with
him from New York. Marshall told him they had no
idea, in France, of a war with us. That Talleyrand
sent passports to him and Pinckney, but none to
Gerry, Upon this Gerry staid, without explaining to
' Federal Administrations, vol, ii., pp 47, 48.

382 LIFE OF JOHN MARSHALL.
them the reason.' He wrote, however, to the Presi
dent by Marshall, who knew nothing of the contents
of the letter. So that there must have been a previous
understanding between Talleyrand and Gerry.
' Marshall was received here [Philadelphia] with
the utmost eclat. The Secretary of State and many
carriages, with all the city cavalry, went to Frankford
to meet him, and, on his arrival here in the evening,
the bells rung till late in the night, and immense
crowds were collected to see and make part of the
show, which was circuitously paraded through the
streets before he was set down at the city tavern.
' All this,' Jefferson characteristically adds, ' was to
secure him to their views, that he might say nothing
which would oppose the game they have been playing.
Since his arrival, I can hear nothing directly from him,
while they are disseminating through the town things,
as from him, diametrically opposite to what he said to
Livingston.' ^
Congress being at this time in session, a public din
ner was given to him by members of both Houses, '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 during
his important mission.'
Marshall now returned to Virginia, (where he was
received with every demonstration of respect,) and re-

' Marshall could not have told Livingston this, because Gerry had
agreed with Talleyrand to remain, had told his colleagues that he in
tended to remain, and this, too, before the passports were sent. His
not receiving a passport had nothing to do with his staying. It would
have been sent, had he demanded it.
2 Jefferson's Works, vol. iv., p. 249. June 21st, 1798. We
have quoted Jefferson's letter for the facts which it contains; his
conjectures are not so important.

ENVOY EXTRAORDINARY TO FRANCE. 383
sumed his labors at the Bar. But his determination
to withdraw from political life was overcome by the
clouded state of affairs, and the earnest appeals that
were made to him, to come forward, at such a junc
ture, and engage in the public service. In the next
chapter we shall view him as a member of Congress.

384 LIFE OF JOHN MARSHALL.

CHAPTER IX.
1799 — 1800.
MEMBER OF CONGRESS.
It was the good fortune of Marshall, as we have
already had occasion to observe, to enjoy the unquah-
fied respect and esteem of Washington ; and it was a
circumstance creditable to Washington's successor in
the Presidency, that he invariably manifested similar
sentiments towards him, and, at last, placed him in
that exalted judicial position where, for so long a pe
riod, he rendered such signal services, and achieved
such lasting and honorable fame.
On the death of Judge Wilson, in the summer of
1798, Mr. Adams fixed upon Marshall as his succes
sor. ' General Marshall or Bushrod Washington,' thus
he wrote the Secretary of State, ' will succeed Judge
Wilson, if you have not some other gentleman to pro
pose, who, in your opinion, can better promote the
public honor and interest. Marshall is first in age,
rank, and public services, probably not second in
talents.' ' In a subsequent letter to the Secretary, he
says, ' The name, the connections, the character, the
merit, and abilities of Mr. Washington are greatly re
spected. But I still think General Marshall ought to
be preferred. Of the threfe Envoys, the conduct of
' Adams' Works, vol. viii., p. 596. September 14th, 1798.

MEMBER OF CONGRESS. 385
Marshall alone has been entirely satisfactory, and
ought to be marked by the most decided approbation
of the public' He has raised the American people in
their own esteem, and if the influence of truth and
justice, reason and argument, is not lost in Europe, he
has raised the consideration of the United States in
that quarter. He is older at the Bar than Mr, Wash
ington; and you and I know by experience that
seniority at the Bar is nearly as much regarded as it
is in the army. If Mr. Marshall should decHne, I
should next think of Mr. Washington.' ^ The post was
accordingly offered Marshall; but insurmountable con
siderations, he wrote the Secretary of State, obliged
him to decline it. Subsequently, it was conferred on
Bushrod Washington.
One of the reasons, and, perhaps, the chief reason,
that probably induced Marshall to decline the office
thus tendered him, was the resolution he had reluc
tantly formed to become a candidate for Congress. It
was at the earnest instance of Washington that he
thus consented to forego his determination to remain
at the Bar, and embark on the angry sea of politics.
'I learnt with much pleasure,' wrote the former to his
nephew, Bushrod Washington, 'from the postscript to
your letter, of General Marshall's intention to make
me a visit. I wish it of all things ; and it is from the
ardent desire I have to see him, that I have not de
layed a moment to express it, lest, if he should have
intended it on his way to Frederic, and hear of my in
disposition, he might change his route. I can add, with
sincerity and truth, that, if you can make it comport
' Compare letter to Cunningham, of November 7th, 1808.
^ Adams' Works, vol. viii., p, 597. Sept. 26th, 1798, Adams,
at this time, was at Quincy.
Vol, IL — 25

386 LIFE OF JOHN MARSHALL.
with your business, I should be exceedingly happy to
see you along with him. The crisis is important. The
temper of the people in this State, at least, in some
places, is so violent and outrageous, that I wish to
converse with General Marshall and yourself on the
elections, which must soon come.' '
Marshall and Bushrod Washington accordingly
visited Mount Vernon, and, while there, the former
was induced, by the urgent wishes of General Wash
ington, to come forward as a candidate for Congress.
The followdng anecdote concerning this visit, though
erroneous as to the time when it occurred, shows that
there were personal incidents connected with it, apart
from public considerations, that gave Washington
much pleasure. ' He was accustomed sometimes to tell
the following story : — On one occasion, during a visit
he paid to Mount Vernon while President, he had in
vited the company of two distinguished lawyers, each
of whom afterwards attained to the highest judicial
situations in this country. They came on horseback,
and, for convenience, or some other purpose, had be
stowed their wardrobe in the same pair of saddle-bags,
each one occupying his side. On their arrival, wet to
the skin by a shower of rain, they were shown into a
chamber to change their garments. One unlocked his
side of the bag, and the first thing he drew forth was
a black bottle of whiskey. He insisted that this was
his companion's repository ; but, on unlocking the
other, there was found a huge twist of tobacco, a few
pieces of corn-bread, and the complete equipment of a
wagoner's pack-saddle. They had exchanged saddle
bags with some traveller on the way, and finally made
their appearance in borrowed clothes, that fitted them
' Washington's Writings, vol. xi., p. 292. August 27th, 1798,

MEMBER OF CONGRESS. 387
most ludicrously. The General was highly diverted,
and amused himself with anticipating the dismay of
the wagoner when he discovered this oversight of the
men of law. It was during this visit that Washington
prevailed on one oijiis guests to enter into public life,
and thus secured to his country the services of one of
the most distinguished magistrates of this or any other
age.' '
The election contest upon which Marshall now en
tered was a very severe one. The public feeling was
in a peculiarly inflamed state, and nowhere more
so than in Virginia. Attacks on private character,
imputation of unworthy motives, suspicions and con
jectures, were freely employed as instruments of party
warfare ; and fortunate was that public character who
was not more or less assailed by them. Marshall no
sooner announced himself as a candidate, than he be
came a mark for all the shafts of party calumny. One
of the means used to procure his defeat was the circu
lation of a malicious report through the district, that
Patrick Henry was unfriendly to his election. When
Mr. Henry was informed of the use that was being
made of bis name, he addressed a letter to his friend
Archibald Blair ; and the following extract will show
the estimation in which he held the future Chief Jus
tice : —
' General Marshall and his colleagues,' thus he
wrote, ' exhibited the American character as respect
able. France, in the period of her most triumphant
fortune, beheld them as unappalled. Her threats left
them as she found them, mild, temperate, firm. Can
it be thought, that, with these sentiments, I should
' Paulding's Life of Washington, vol. ii., p. 191.

388 LIFE ^ JOHN MARSHALL,
utter anything tending to prejudice General Marshall's
election. Very far from it, indeed. Independently
of the high gratification I felt from his pubhc Ministry,
he ever stood high in my esteem as a private citizen.
His temper and disposition were ^vays pleasant, his
talents and integrity unquestioned. These things are
sufficient to place that gentleman far above any com
petition in the district for. Congress. But when you
add .the particular information and insight which he
has gained, and is able to communicate to our pubhc
councils, it is really astonishing that even blindness
itself should hesitate in the choice. But it is to be ob- ^
served, that the efforts of France are to loosen the
confidence of the people everywhere in the public
functionaries, and to blacken characters most emi-
nentl}' distinguished for virtue, talents, and public com
fidence ; thus smoothing the way to conquest, or those
claims of superiority as abhorrent to my mind as con
quest, from whatever quarter they may come.
' Tell Marshall I love him, because he felt and acted
as a republican, as an American. The story of the
Scotch merchants and old tories voting for him is too
stale, childish, and foolish, and is a French, finesse ; an
appeal to prejudice, not to reason and good sense. . . .
As to the particular words stated by you, and said to
come from me, I do not recollect saying them. But,
certain I am, I never said anything derogatory to
General Marshall; but, on the contrary, I really
should give him my vote for Congress, preferably to
any citizen in the State at this juncture, one only ex
cepted, and that one is in another line.' '¦
' Washington's Writings, vol. xi., p.. 558, January 8th, 1799.
General Washington is supposed to be the citizen whom alone Mr.
Henry would prefer to Marshall, and he, at that time, was in com
mand of the army.

MEMBER OF CONGRESS. 389
Another calumny employed to defeat his election is
sclosed in the
Washington : —

disclosed in the following letter from Marshall to

'o"

'You may possibly have seen,' he says, 'a para
graph in a late publication, stating that several im
portant offices in the gift of the Executive, and among
others, that of Secretary of State, had been attainable
by me. Few of the unpleasant occurrences produced
by my declaration as a candidate for Congress (and
they have been very abundant) have given me more
real chagrin than this. To make a parade of proffered
offices is a vanity, which I trust I do not possess ; but
to boast of one never in my power would argue a lit
tleness of mind at which I ought to blush. I know not
how the author may have acquired his information,
but I beg leave to assure you that he never received
it directly nor indirectly from me. I had no previous
knowledge that such a publication was designed, or I
would certainly have suppressed so much of it as re
lates to this subject. The writer was unquestionably
actuated by a wish to serve me, and by reisentment at
the various malignant calumnies which have been so
profusely bestowed on me. One of these was, that I
only wished a seat in Congress for the purpose of ob
taining some office, which my devotion to the Admin
istration might procure. To repel this was obviously
the motive of the indiscreet publication I so much
regret, ' A wish to rescue myself, in your opinion, from the
imputation of an idle vanity, which forms, if I know
myself, no part of my character, will, I trust, apologize
for the trouble this explanation may give you,' ' But

' Writings of Washington, vol. xi,, p. 424. May 1st, 1799.

390 LIFE OF JOHN MARSHALL.
to Washington, who knew him, this explanation was
unnecessary. ' I am sorry to find,' thus he wrote in
reply, ' that the publication you allude to should have
given you a moment's disquietude, I can assure you,
it made no impression on my mind, of the tendency
apprehended by you,'^
Notwithstanding the persevering and systematic
efforts that were made to effect a different result; not
withstanding the 'gleam of Federalism in Virginia'
was fast expiring, Marshall, to the honor of the Rich
mond district, be it said, was elected. His majority,
however, was small ; and that was the only drawback
to the gratification of his friends, 'The election of
General Lee and Marshall,' wrote Washington, 'is
grateful to my feelings, I wish, however, both of
them had been elected by greater majorities; but thej
are elected, and that alone is pleasing. As the tide is
turned, I hope it will come in with a full flow ; but
this will not happen, if there is any relaxation on the
part of the Federalists.' ^
Marshall took his seat in Congress at the opening
of the session, in December, 1799. The state of par
ties in the public councils, and the part Marshall was
thought likely to play there, are thus described in a
letter from Wolcott to Fisher Ames : —
' The Federal party,' he says, ' is composed of the
old members who were generally re-elected in the
Northern, with new members from the Southern
States. New York has sent an anti-Federal majority;
Pennsylvania has done the same ; opposition princi-
' Writings of Washington, vol. xi., p. 424. May 5th, 1799.
^ Ibid., p. 425. May 5th, 1799. Letter to Bushrod Washington.
The election took place in April, 1799.

V

MEMBER OF CONGRESS. 391
pies are gaining ground in New Jersey and Maryland,
and, in the present Congress, the votes of these States
will be fluctuating and undecided. A number of dis
tinguished men 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 im
portance.' '

The opinion Wolcott thus expressed of Marshall was
also professed by his political adversaries. They ' al
lege that be is a mere lawyer ; that his mind has been
so long trammelled by judicial precedent, so long habi
tuated to the quart and tierce of forensic digladiation,
(as Doctor Johnson would probably have called it,) as
to be unequal to the discussion of a great question of
State.' ^ This sort of criticism will be deemed less sin
gular, when we reflect that it has been employed with
respect to almost all distinguished lawyers who have
entered political life ; that in England, especially, the
habits and learning of the Bar have been regarded as
inconsistent with those bold, unfettered, comprehen
sive views that mark the character of the great states
man ; and that, besides the evident motive which his
political opponents had to depreciate his statesmanship,
Wolcott and the majority of the Cabinet were equally
' Federal Administrations, vol. ii., p- 314.
' The British Spy, p, 183,

392 LIFE OF JOHN MARSHALL,
hable to undervalue his political sagacity, from the fact
that he differed with them on a question of policy which
they deemed of capital importance, namely, the mis
sion to France ; he approving, and they strongly dis
approving it. Nevertheless, when it is considered that
Marshall, throughout his long judicial career, invariar
bly maintained what has been termed the liberal con
struction of the Constitution, and that the bias of his
mind was to general principles rather than to technical
distinctions, it must strike the reader as a little odd
that he should have been thought, at any period of his
public life to have brought to the exposition of that
instrument narrow rules, or limited views. At the same
time, it may be admitted that his peculiar excellence
was judicial rather than political; that he was better
fitted to explore the mazes of ingenious argument, to
pronounce clear, impartial judgment on the systems
and measures of others, than to devise systems and
measures himself; and that the forming hand of na
ture intended him for a great magistrate, rather than
a great political leader.
The answer to the President's speech was drafted
by Marshall, who was Chairman of the Committee ap
pointed for that purpose. It was a delicate task. The
Federalists were divided in sentiment as to the pro
priety of the mission to France ; those from the
Northern States, for the most part, denouncing it,
while the new members from the South, coming from
a region of country where the anti-Federalists were
rapidly gaining the ascendency, and where they had
been beset by the popular cry, that the country was
being hurried into war with France in consequence of
British influence, and that peace was attainable, if
right steps were taken, approved it. In this contra
riety of opinion, Marshall had a difficult duty to per-

MEMBER OF CONGRESS. 393
form, and that he failed to please all is not singular.
In guarded, moderate language, the address expressed
approbation of the mission, and, in that form, 'passed
with silent dissent."
When we reflect how solicitous Washington was,
that Marshall should enter Congress, and how gratified
he was at his election, we cannot fail to be struck with
the circumstance, that it was among the first of his
Congressional duties, to announce the death of that
great man, whose loss the whole nation deplored. The
rumor of Washington's decease reached Philadelphia
on the 18tb of December. On that day, Marshall, 'in
a voice that bespoke the anguish of his mind, and a
countenance expressive of the deepest regret,' rose,
and after stating the calamity that had probably be
fallen the country, moved an adjournment of the
House. The next day, with ' suppressed voice, and
deep emotion,' he addressed the Chair as follows : —
' Mr. Speaker : — The melancholy event which was
yesterday announced with doubt, has been rendered
but too certain. Our Washington is no more ! The
Hero, the Sage, and the Patriot of America — the man
on whom, in times of danger, every eye was turned,
and all hopes were placed — lives now only in his own
sreat actions, and in the hearts of an affectionate and
afflicted people.
' If, Sir, it had not been usual openly to testify re
spect for the memory of those whom Heaven had
selected as its instruments for dispensing good to men,
yet such has been the uncommon worth, and such the
extraordinary incidents which have marked the life

' Federal Administrations, vol. ii., p. 314. See this address in
Benton's Debates of Congress, vol. ii., p. 431.

394 LIFE OF JOHN MARSHALL.
of him whose loss we all deplore, that the whole Ame-
lican nation, impelled by the same feelings, would call
with one voice for a public manifestation of that sor
row which is so deep and so universal.
' More than any other individual, and as much as to
any one individual was possible, has he contributed to
found this, our wide-spreading empire, and to give to
the Western world its independence and freedom.
Having effected the great object for which he was
placed at the head of our armies, we have seen him
converting the sword into the ploughshare, and volun
tarily sinking the soldier in the citizen.'
' Having been twice unanimously chosen the Chief
Magistrate of a free people, we see him, at a time when
his re-election, with the universal suffrage, could not
have been doubted, affording to the world a rare in
stance of moderation, by withdrawing from his high
station to the peaceful walks of private life.
' However the public confidence may change, and
the public affections fluctuate with respect to others,
yet, with respect to him, they have in war and in
peace, in public and private life, been as steady as his
own firm mind, and as constant as his own exalted
virtues. ' Let us then, Mr. Speaker, pay the last tribute of
respect and affection to our departed friend — let the
Grand Council of the nation displa}' those sentiments
which the nation feels.
' For this purpose, I hold in my hand some resolu
tions, which I will take the liberty to offer to the
House.' '

' These were the resolutions drafted by General Lee ; the last of
which described Washington as ' first in war, first in peace, and first
in the hearts of his countrymen.'

MEMBER OF CONGRESS. 395
To every capital measure of Washington's Admin
istration, Marshall, both in public and private life, had
given an ardent and able support; to the Administra
tion of John Adams he gave a similar support, unless,
indeed, we except his approval of the mission to
Prance, which was a measure of the President's, a
measure disapproved by his Cabinet, and the leading
Federal members of Congress, and, also, his vote to
repeal the obnoxious clause of the sedition act.' This
act had everywhere, and particularly in Virginia, en
countered the most violent hostility. It was an ex
ceedingly impolitic measure, and Marshall, during the
canvass that resulted in his election, had announced
his purpose to vote for its repeal ; not because it was
unconstitutional, but because it was inexpedient. That
pledge, he now redeemed.
He did not often mingle in the debates, while be
remained a member of the House ; but when he did,
he made an impression upon his auditors, not easily
effaced. His career in Congress was especially marked
by his speech in the celebrated case of Jonathan Rob-
bins ; a speech wdiich forever settled the questions of
constitutional law involved in it. Thomas Nash, who
assumed the name of Jonathan Robbins, and claimed
to be a citizen of the United States, impressed by the
British, was committed to jail, in Charleston, South
Carolina, at the instance of the British Ccmsul, on sus
picion of having been an accomplice in piracy and
murder on board the British frigate Hermioue. The
English Minister having made a requisition to the
President for the delivery of Nash as a fugitive from
justice, under a provision of the Jay treaty, the latter
advised and requested the Federal judge at Charleston
' We refer to the clause relating to seditious libels.

396 LIFE OF JOHN MARSHALL.
to deliver him up, provided such evidence of his crimi
nality was produced as, by the laws of the United
States, or of South Carolina, would justify his commit
ment for trial, if the offence had been committed
within- the jurisdiction of the United States. Nash
was accordingly delivered to the British Consul, was
afterwards tried by a court-martial, found guilty of
mutiny and murder, and executed. He acknowledged,
before his death, that he was an Irishman.
The delivery of Nash to the British authorities occa
sioned a great outcry. Before the people, it was asserted
that he was an American citizen, had been impressed,
and was now surrendered as a murderer, for having
committed a homicide in the attempt to liberate him
self from illegal confinement. But, in Congress, it was
admitted that he was an Irishman, and guilty of the
crimes for which he suffered death. The ground of
complaint was, that the question whether he should
be given up, belonged exclusively to the courts, and,
consequently, the advice and request of the President
to have him delivered ujj, upon the conditions we
have stated, was a dangerous interference of Execu
tive with judicial authority.
In opposition to this view of the matter, and in de
fence of the course pursued by the President, Marshall
addressed the House. His speech is strictly argumen
tative, and clearly demonstrates three propositions.
First, That the case of Nash, as stated to the Presi
dent, was completely within the meaning of the ren
dition clause of the Jay Treaty.
Secondly. That it constituted a question for Execu
tive and not judicial decision.
Thirdly. That, in deciding it, the President was
not chargeable with an interference with judicial func
tions.

MEMBER OF CONGRESS. 397
The train of reasoning that led him to these results
elicited, at the time, the highest admiration, and has,
ever since, been equally applauded. We have space
for only a single extract. It relates, however, to an
observation which had been made in the course of the
debate, and is not directly connected with the line of
his argument. But it contains sentiments which were.
so well calculated to interest the public feelings ; senti
ments, too, so worthy of him, that we have selected
it for quotation.
'The gentleman from Pennsylvania [Mr. Gallatin]
has said that an impressed American seaman, who
should commit homicide for the purpose of liberating
himself from the vessel in which he was confined,
ought not to be given up as a murderer. In this I
concur entirely with that gentleman. I believe the
opinion to be unquestionably correct, as are the rea
sons he has given in support of it. I never heard any
American avow a contrary sentiment, nor do I believe
a contrary sentiment can find a place in the bosom of
an American. I cannot pretend, and do not pretend
to know^ the opinion of the Executive on this subject,
because I have never heard the opinions of that de
partment; but I feel the most perfect conviction,
founded on the general conduct of the Government,
that it could never surrender an impressed American
to the nation which, in making the impressment, com
mitted a national injury. This belief is in no degree
shaken by the conduct of the Executive in this par
ticular case. . . .
'The President has decided that a murder com
mitted on board a British frigate on the high seas, is
within the jurisdiction of that nation, and, conse
quently, within the twenty-seventh article of its treaty

398 LIFE OF JOHN MARSHALL.
with the United States. He therefore directed Thomas
Nash to be delivered to the British Minister, if satis
factory evidence of the murder should be adduced.
The sufficiency of the evidence was submitted entirely
to the Judge. If Thomas Nash had committed a mur
der, the decision was that he should be surrendered to
the British Minister ; but if he had not committed a
murder, he was not to be surrendered. Had Thomas
Nash been an impressed American, the homicide on
board the Hermione would, most certainly, not have
been a murder.
' The act of impressing an American, is an act of
lawdess violence. The confinement on board a vessel
is a continuation of the violence, and an additional
outrage. Death committed within the United States,
in resisting such violence, is not murder, and the per
son giving the wound cannot be treated as a murderer.
Thomas Nash was only to be delivered up to justice
on such evidence as, had the fact been committed
within the United States, would be sufficient to have
induced his commitment and trial for murder. Of
consequence, the decision of the President was so ex
pressed, as to exclude the case of an impressed Ame
rican liberating himself by homicide.'
Though the case of Nash had been made a party
question, so conclusive was the argument in support of
the President's course, that many of the Democratic
members voted in its justification, and the resolutions
censuring it were lost by a vote of sixty-one to thirty-
five. Out of doors, too, the fierce invective and denun
ciation that had been called forth by a misapprehen
sion of the case, were silenced, and the public opinion
was rescued from the prejudices that had surrounded
it.

MEMBER OF CONGRESS. 399
Congress adjourned on the 14th of May, and Mar
shall having been appointed Secretary of State, re
signed his seat in that body. We have seen with what
difficulty he was elected ; and, as an evidence of the
strength of the current that was setting against the
Federalists, we may mention that, at the subsequent
election, his place was supplied by a Republican. ' Mr.
Mayo, who was proposed to succeed General Marshall,
lost his election by an immense majority, was grossly
insulted in public by a brother-in-law of the late Sena
tor Taylor, and was afterwards wounded by him in a
duel." ' Wolcott to Ames, August 10th, 1800. Federal Administrations,
vol. ii., pp. 400, 404.

400 LIFE OF JOHN MARSHALL.

CHAPTER X.
1800-1801.
SECRETARY OF STATE.
The Cabinet of President Adams, as described at
the time, was an exceedingly disjointed one. They
were, as he afterwards said, ' a legacy of Secretaries
left him by General Washington.' The Secretary of
State was Timothy Pickering; of the Treasury, Oliver
Wolcott; of War, James M'Henry; of the Navy, Ben
jamin Stoddkrt;' and the Attorney-General was Charles
Lee. The first, Mr. Adams has described with character
istic point, and in terms which, it has been observed,
would be equally applicable to himself 'He [Mr,
Pickering] is, for anything I know, a good son, hus
band, father, grandfather, brother, uncle, and cousin ;
but he is a man in a mask, sometimes of silk, some
times of iron, and sometimes of brass ; and he can
change them very suddenly, and with some dexterity.'
' He is extremely susceptible of violent and inveterate
prejudices ; and yet, such are the contradictions to be
found in human characters, he is capable of very sud
den and violent transitions from one extreme to an op
posite extreme. Under the simple appearance of a
' Stoddstt was appointed by Mr. Adams ; the Navy Department
being created after his accession to the Presidency.

SECRETARY OF STATE. 401
hald head and straight hair, and under professions of
profound republicanism, he conceals an ardent ambi
tion, envious of every superior, and impatient of obscu
rity. I always think of a coal-pit, covered over with
red earth, glowing within, but unable to conceal its
internal heat, for the interstices which let out the
smoke, and now and then a flash of flame.'
Wolcott, though not belonging to the highest grade
of public character, was a man of abilities ; energetic,
ardent, and sagacious. He administered the affairs of
the Treasury with great prudence, and graced the
position he occupied.
M'Henry, though 'sensible, judicious, well-informed,
of an integrity never questioned, of a temper which,
though firm in the support of principles, had too much
moderation and amenity to offend by the manner of
doing it,' ' did not possess the peculiar qualifications
required for the duties of the War Department. He
wanted skill in the details of administration. ' The
diffidence which he feels,' wrote Wolcott, ' exposes his
business to delays, and he sometimes commits mis
takes which his enemies employ to impair his in
fluence.' ^
The Secretary of the Navy, and the Attorney-Gene
ral, are thus described, and by the same hand : —
' Mr. Stoddkrt,' he says, ' is a man of great sagacity,
and conducts the business of his Department with suc
cess and energy; he means to be popular; he has
more of the confidence of the President than any offi-

' Thus described by Hamilton.
= Wolcott to Ames, December 29th, 1799. Federal Administra
tions, vol. ii., p. 315,
Vol. IL — 26

402 LIFE OF JOHN MARSHALL.
cer of the Government. He professes to know less
than h(^ really knows, and to be unequal to the task
of forming or understanding a political system. He
will have much influence in the Government, and
avoid taking his share of the responsibility.
' Mr. Lee is a sensible man, and I think a candid
man, who thinks much of Virginia. He fears disorders
and a dissolution of the Union. He frequently dissents
to what is proposed by others, and approves, the senti
ments of the President ; but, with respect to measures,
will rarely take an active part'.^
The differences between the President and his three
principal Secretaries, Pickering, M'Henry, and Wol
cott, respecting the mission to France, and the acrimo
nious feelings growing out of those differences, led to
important changes in the Cabinet. M'Henry was
forced to resign, and Pickering, refusing to resign, was
dismissed. Wolcott was retained, it was said, because
the President feared derangements in the affairs of the
Treasury f but the more probable cause is, that he was
not informed as to the extent of his hostility. Wol
cott, however, voluntarily resigned before the close of
the year.
M'Henry resigned on the 6th of May, 1800; the re-
' Wolcott to Ames, December 29th, 1799. Federal Administra-
tions, vol. ii., p. 315.
^ M'Henry to M'Henry, May 20th, 1800. Ibid., pp. 346, 348.
It must be admitted that Adams had just cause for the removal of hia
obnoxious Secretaries. He certainly was entitled to the aid of a
Cabinet who sympathized with his views. But Pickering, Wolcott,
and M'Henry not only condemned his policy, but were personally op
posed to him. Pickering hated him, openly denounced him, and all
desired to get rid of him. Mutual confidence was gone. The won
der is, considering Adams' impetuous temperament, that they were
not dismissed at an earlier moment.

SECRETARY OF STATE. 403
signation to take effect on the 1st of June. On the
7th, Marshall was nominated as his successor. ' He
was never consulted, and had no intimation that
M'Henry was to retire." This appointment he de
clined; but, on the 13th, accepted the Department of
State, from which Pickering had been removed the
day before. The War Department was filled by Mr.
Dexter. The accession of Marshall to the Cabinet, under the
circumstances we have described, caused not the
slightest diminution of friendship between Pickering
and himself, nor the least abatement of confidence and
respect on the part of those who sympathized with the
discarded Secretaries. Even Wolcott applauds his
acceptance of the post assigned him, and bears testi
mony to the importance of his services. ' Let me not
be suspected,' thus he writes, 'of entertaining the
harsh opinion that the gentlemen lately appointed to
office are not independent men. 1 highly respect and
esteem them both, and consider their acceptance of
their offices as the best evidence of their patriotism. . .
I consider General Marshall and Mr. Dexter as more
than Secretaries — as State Conservators — the value
of whose services ought to be estimated, not only by
the good they do, but by the mischief they have pre
vented. If I am not mistaken, however. General Mar
shall will find himself out of his proper element.'^
'But,' says Mr. Adams, 'my new Minister, Marshall,
did all to my entire satisfaction,' and he might have
added, to the public satisfaction also. His instructions
to Mr. King, our Minister at the Court of St. James,

' Wolcott to Ames, August 10th, 1800. Federal Administrations,
vol. ii., pp. 400, 402.
' Ibid.

404 LIFE OF JOHN MARSHALL.
respecting the claims of British creditors, and neutral
rights, have always, deservedly, held high rank in the
roll of American State papers. The pending negotia
tions with France threatened to compromi^us with
England, as the negotiations with England six years
before had threatened to involve us in war with
France. But this pretension, that one nation may in
terfere with the concerns of another nation, equally
independent and sovereign as itself, was never submit
ted to by the United States. The Jay treaty was rati
fied in spite of the clamors and threats of France, and
the negotiations with France were prosecuted to a suc
cessful conclusion, notwithstanding the jealousy of Eng
land. 'The United States,' said Marshall, in a despatch
to Mr. King, ' do not hold themselves in any degree
responsible to France or to Great Britain for their ne
gotiations with the one or the other of those Powers ;
but they are ready to make amicable and reasonable
explanations with either. The aggressions sometimes
of one and sometimes of another belligerent Power,
have forced us to contemplate and prepare for war as
a probable event. We have repelled, and we will con
tinue to repel, injuries not doubtful in their nature,
and hostilities not to be misunderstood.. But this is a
situation of necessity, not of choice. It is one in which
we are placed, not by our own acts, but by the acts of
others, and which we change as soon as the conduct
of others will permit us to change it.
The Presidential election in 1800 was conducted
with great violence, and resulted, as is well known, in
the defeat of Mr. Adams. His competitor was the only
public character, it is believed, towards whom Marshall
ever imbibed and retained feelings of personal hos
tility. He had no confidence either in his politics or
morals. When, therefore, it was ascertained that the

SECRETARY OF STATE. 40-5
House of Representatives would be compelled to choose
between Jefferson and Burr for President, he inclined
to the opinion that the Federalists should support the
latter. A letter from Hamilton, however, portraying
the character of Burr, presented the matter in a dif
ferent light. 'Being no longer in the House of Repre
sentatives,' thus he wrote Hamilton, 'and, conse
quently, compelled by no duty to decide between
them, my own mind had scarcely determined to which
of these gentlemen the preference was due. To Mr.
Jefferson, whose political character is better known
than that of Mr. Burr, I have felt almost insuperable
objections. His foreign prejudices seem to me totally
to unfit him for the Chief Magistracy of a nation, which
cannot indulge those prejudices without sustaining deep
and permanent injury. In addition to this solid and
immovable objection, Mr. Jefferson appears to me to
be a man who will embody, himself with the House of
Representatives. By weakening the office of President,
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 of the Legis
lature. The morals of the author of the letter to Maz-
zei cannot be pure.' With these impressions concern
ing Mr. Jefferson, I was, in some degree, disposed to
view with less apprehension any other characters, and
to consider the alternative how offered us as a circum
stance not to be entirely neglected.
' Your representation of Mr. Burr, with whom I am
entirely unacquainted, shows that from him still
greater danger than even from Mr. Jefferson may be
apprehended. Such a man as you describe is more to

Compare Ellsworth's opinion, ante, p. 177.

406 LIFE OF JOHN MARSHALL.
be feared, and may do more immediate, if not greater,
mischief. Believing that you know him well, and are
impartial, my preference would certainly not be for
him; but I can take no part in this business. I can
not bring myself to aid Mr. Jefferson, Perhaps respect
for myself should, in my present situation, deter me
from using any influence (if, indeed, I possess any) in
support of either gentleman. Although no considera
tion 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, yet this cannot be so
well known to others, and it might be suspected that
a desire to be well with the successful candidate had,
in some degree, governed my conduct.' '
With such sentiments, and a line of conduct, uniform
and consistent, in support of Federal measures, unless
his concurrence with the President respecting the mis
sion to France, and his opposition to the sedition act,
be exceptions, it was yet reported, before the result of
the election was known, that, whatever the event, he
would not voluntarily retire from his post. 'I have
been told,' wrote M'Henry, that 'Mr. Marshall has sig
nified 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 poli
tics of the two gentlemen, that one of them must fly
off from the other?' ^ To this Wolcott thus replied: —
' The issue of the election is uncertain, but if Mr. Jef
ferson should be chosen, Mr. Marshall will certainly
• ' Marshall to Hamilton, January 1st, 1801. Hamilton's Works,
vol. vi., p. 501.
" M'Henry to Wolcott, November 9th, 1800. Federal Administra
tions, vol. ii., p. 445.

SECRETARY OF STATE. 407
retire. The opposition of sentiment between these
men appears to be decided, and, I believe, is unchange
able ; what you have heard is, therefore, a mistake.' '
Marshall continued to discharge the duties of the
State Department until the close of Mr. Adams' Ad
ministration, on the 4tb of March, 1801. He had,
however, in the meantime, as we shall see in the next
chapter, been appointed Chief Justice of the United
States. ' November 26th, 1800. Ibid., p. 447.

408 LIFE OF JOHN MARSHALL.

CHAPTER XI.
1801 — 1835.
CHIEF JUSTICE OF THE UNITED STATES.
Upon the resignation of Chief Justice Ellsworth, Jay
was nominated as his successor ; but he declined the
appointment. A very general expectation was then
entertained that the vacant post would be tendered to
Judge Patterson. He stood high in the estimation of
the Bar for learning and abilities ; nor was the Presi
dent insensible to his merits. But Mr. Adams objected
to his nomination, it is said, lest it might wound the.
feelings of Judge Cushing, an old friend, and the senior
member of the Court. Looking, therefore, beyond the
bench for a suitable person to fill the office, his ' prompt
and spontaneous choice' fell upon John MarshaU.
Accordingly, on the 31st of January, 1801, he re
ceived the appointment of Chief Justice of the United
States. He had now attained the age of forty-five. His per
sonal appearance at this period of his life has been
thus described — 'The Chief Justice of the United
States is, in his person, tall, meagre, emaciated : his
muscles relaxed, and his joints so loosely connected,
as not only to disqualify him, apparently, for any vig
orous exertion of body, but to destroy everything like
harmony in his air and movements. Indeed, in his

CHIEF JUSTICE OF UNITED STATES. 409
whole appearance and demeanor; dress, attitudes, ges
ture; sitting, standing, or walking; he is as far removed
from the idolized graces of Lord Chesterfield, as any
other gentleman on earth. His head and face are
small, in proportion to his height; his complexion
swarthy; the muscles of his face, being relaxed, make
him appear to be fifty years of age, nor can he be
much younger. His countenance has a faithful expres
sion of great good humor and hilarity; while his black
eyes, that unerring index, possess an irradiating spirit
which proclaims the imperial powers of the mind that
sits enthroned within."
Several years later. Judge Story, then a young man
of thirty, who had gone to Washington to argue the
case of Fletcher v. Peck,^ communicated to a friend
the following description of the Chief Justice : —
' Marshall,' he says, ' 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, harmo
nious. His manners are plain, yet dignified ; and an
unaffected modesty diffuses itself through all his ac
tions. 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, be is
quite familiar, but is occasionally embarrassed by a
hesitancy and drawling. His thoughts are always
clear and ingenious, sometimes striking, and not often
inconclusive ; he possesses great subtlety of mind,
but it is only occasionally exhibited. I love his laugh
— it is too hearty for an intriguer — and his good tem-

The British Spy, p. 178. ^ Cranch, vol. vi., p, 137.

410 LIFE OF JOHN MARSHALL.
per and unwearied patience are equally agreeable on
the Bench and in the study. His genius is, in my
opinion, vigorous and powerful, less rapid than discri
minating, and less vivid than uniform in its light. He
examines the intricacies of a subject with calm and
persevering circumspection, and unravels the myste
ries 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.'^ ' There is no man in the Court that strikes me like
Marshall,' wrote Daniel Webster when serving as a
member of Congress from New Hampshire. ' He is a
plain man, looking very much like Col. Adams, and
about three inches taller. I have never seen a man
of whose intellect I had a higher opinion.'^ And the
impression thus early made upon Mr. Webster was
confirmed and strengthened by his subsequent prac
tice in the Supreme Court. Alluding to the com
mon expression of the Chief Justice, 'it is admitted,'
he once remarked to Judge Story, ' when Judge Mar
shall says, it is admitted. Sir, I am preparing for a
bomb to burst over my head, and demohsh all my
points.' ^
When Marshall first came to the Bench, his distin
guished talents were known and recognized ; but as
time advanced, and his abilities were more conspicu-

' Story's Life and Letters, vol. i., p. 166. Letter to Fay, February
25th, 1808.
^ Private Correspondence of Daniel Webster, vol. i., p. 243. Letter
to Ezekiel Webster, March 28th, 1814.
' Story's Life and Letters, vol. ii., p. 505.

CHIEF JUSTICE OF UNITED STATES. 411
ously exhibited, and the winning graces of his daily
life more generally observed, he came to be regarded
by the Bar and the country with reverence and affec
tion. If we except Washington, it may be safely
asserted, that no American citizen, either in public or
private life, has been so universally beloved and
esteemed. He occupied the post of Chief Justice
during the long period of thirty-four years, and thirty-
two volumes of reports, in which his decisions are col
lected and preserved, attest the extent, variety, and
importance of his labors. In all coming time, the stu
dent of international and constitutional jurisprudence
will there discover that intellectual power, that depth
of investigation, and wisdom of decision, which gave
him such a commanding position among the jurists of
his time.
He combined, in a remarkable degree, the qualities
that constitute a great magistrate ; a mind which no
sophistry or subtlety could mislead; a firmness that
nothing could shake, untiring patience, and spotless
integrity. In legal acquirements, indeed, he has been
surpassed by others. He was more familiar with prin
ciples than cases, and more 'knowing' than 'learned.'
' His mind,' said a gifted cqtemporary, ' is not very
richly stored with knowledge ; but it is so creative, so
well organized by nature, or disciplined by early edu
cation, and constant habits of systematic thinking, that
he embraces every subject with the clearness and faci
lity of one prepared by previous study to comprehend
and explain it. So perfect is bis analysis, that he ex-
tracts the whole matter, the kernel of inquiry, un
broken, clean, and entire. In this process, such are
the instinctive neatness and precision of his mind, that
no superfluous thought, or even word, ever presents
itself, and still he says everything that seems appro-

412 LIFE OF JOHN MARSHALL.
priate to the subject.'' It was the rare faculty which
he possessed, of detecting intuitively, as it were, the
decisive point of a case, that particularly distinguished
him. ' It was matter of surprise,' says Judge Story,
'to see how easily he grasped the leading principles of
a case, and cleared it of all its accidental incumbrances;
how readily he evolved the true points of the contro
versy, even when it was manifest, that he never before
had caught even a glimpse of the learning, upon which
it depended.' ^
It has been said of Fox, that, owing to his want of
extensive information, his conversation degenerated
into argument. He challenged propositions, and dis
cussed facts, in order to fix and satisfy his own mind.
For a similar reason, perhaps, Marshall courted and
delighted in the discussions of the Bar, ' He was soli
citous,' says the authority we have just quoted, ' to
hear arguments; and not to decide causes without
them. And no Judge ever profited more by them.
No matter whether the subject was new or old ; fami
liar to his thoughts, or remote from them; buried
under a mass of obsolete learning, or developed for the
first time yesterday; whatever was its nature, he
courted argument, nay, he demanded it.' ^ And, says
Mr. Binney, 'whether the argument was animated or
dull, instructive or superficial, the regard of his ex
pressive eye was an assurance that nothing that o,ught
to affect the cause was lost by inattention or indiffer
ence; and the courtesy of his general manner was only
so far restrained on the Bench, as was necessary for the
dignity of office, and for the suppression of familiarity.' "
' Sketches and Essays of Public Characters, by Francis W. Gilmer.
^ Discourse on Marshall, p. 70,
' Ibid.
'' Eulogy on John Marshall, p. 58,

CHIEF JUSTICE OF UNITED STATES, 413
He never evaded, nor attempted to evade the force of
an opposing argument. He met it fairly, gave it its
due weight, and then exposed its fallacy, or inapplica-
bihty, with irresistible cogency. 'Perhaps no judge
ever excelled him in the capacity to hold a legal pro
position before the eyes of others in such various forms
and colors. It seemed a pleasure to him to cast the
darkest shades of objection over it, that he might show
how they could be dissipated by a single glance of
light. He would, by the most subtle analysis, resolve
every argument into its ultimate principles, and then,
with a marvellous facility, apply them to the decision
of the cause.''
It has been remarked, that no judge ever profited
more from argument ; and it is not, perhaps, diverging
into the circle of exaggeration, to say, that no Bar was
ever more capable of aiding the mind of the Bench,
than the Bar of the Supreme Court, in the time of
Chief Justice Marshall.
Massachusetts was there represented by Dexter, a
man of original power, who brought to the discussions
of the forum something more than the learning of the
lawyer ; a comprehension that grasped the very foun
dations of all law, and a force of argument and illus
tration that riveted all minds;^ and Webster, eminent
for his powers of argument and eloquence, learned in
' Story's Discourse, p. 69.
^ Mr. Dexter depended much more upon the suggestions and de
ductions of his own mind than upon the learning of the books. It
has been said, that he ' often found himself sustained by the autho
rity of a Scott or a Mansfield, when he was not aware that he was
treading in the footsteps of those great jurists.' He was, undoubt
edly, one of the ablest advocates that has ever appeared at the Ame
rican Bar.

414 LIFE OF JOHN MARSHALL.
the principles of the common law, strong, compact,
and massive.'
New York sent there, along with Hoffman, Wells,
and Ogden, — Emmett and Oakly; the one possessing a
mind of great activity, vigor, and resource, and a heart
full of the springs of an affecting eloquence ; and the
other, with an intellect so naturally logical, and so
adapted to reasoning upon legal subjects, that, without
the aid of profound learning, he rose to a high grade
of distinction as a lawyer, and discharged the duties
of Chief Justice of New York with an ability that
adorned even the seat that had been so long and emi
nently filled by a Kent.
Pennsylvania supplied a Tilghman, ' strong, clear,
pointed, and logical ;' ^ a Rawle, precise, perspicuous,
and accurate, but with a mind better adapted, perhaps,
to explore the niceties of the law than firmly to grasp
its more enlarged principles; an Ingersoll, learned and
laborious, but diffuse and tedious ; a Duponceau, dili
gent, acute, and ingenious ; a Hopkinson, an able law
yer, and a man of liberal principles and culture; a Ser
geant, distinguished for the vigor and grasp of his
mind ; together with another and living name, whose
merits and abilities the voice of future eulogy cannot
fail to distinguish and record.''
Maryland asserted a high, and, probably, a pre-emi
nent place at that Bar, in the persons of Luther Mar
tin, William Pinkney, and Robert G. Harper. Jeffer
son termed the former, during the progress of Burr's
' A very comprehensive and candid estimate of 'Daniel Webster
as a jurist,' will be found in a pamphlet, under that title, which con
tains an Address to the Law Students at Cambridge, by the Hon.
Joel Parker, LL.D.
^ Judge Story. See also a notice of Tilghman, by Judge Duncan,
in Lyle v. Richards, in Sergeant & Eawle's Reports, vol. ix.
' It is scarcely necessary to say, that reference is here made to
Horace Binney.

CHIEF JUSTICE OF UNITED STATES. 415
trial, 'an impudent Federal bull-dog,' a description
suggestive of the pluck, vigor, and strength, that dis
tinguished him. Nature had given him a mind of great
force ; and deep study had stored it with profound
learning. His uncommon powers, however, were not
always at command, and, before he could concentrate
them upon his objects, be was desultory, wandering,
and inaccurate.
Pinkney was vain, artificial, arrogant, and overbear
ing; but, in those qualities that constitute the great
lawyer and advocate, he was unequalled, certainly not
surpassed by any of his cotemporaries. His talents,
powerful from nature, and cultivated by learning, were
stimulated and excited by an ambition that never
paused in the pursuit of professional fame. Chief Jus
tice Marshall said, that he never knew his equal as a
reasoner — so clear and luminous was his method of
argumentation.' With a harsh and feeble voice, with
a manner vehement, nay, almost boisterous; 'yet,
notwithstanding these defects,' says Judge Story, ' such
is bis strong and cogent logic, his elegant and perspi
cuous language, his flowing graces, and rhetorical
touches, his pointed and persevering arguments, that
he enchants, interests, and almost irresistibly leads
away the understanding.' ^
Harper was an able lawyer, a graceful orator, and
united, in his forensic efforts, argument and eloquence
with admirable felicity.
Virginia furnished fit representatives of her genius
in Wickham, Leigh, Nicholas, and the buoyant and
gifted Wirt, who combined, not, perhaps, in exact pro
portions, the great and the graceful, and enforced his
' Story's Life and Letters, vol. ii., p. 494.
" Ibid., vol. i., p. 217. Letter to Mrs, Story, March 6th, 1812.

416 LIFE OF JOHN MARSHALL.
carefully prepared arguments with an attractive and
persuasive oratory.
These were the men, with others, among the living
and the dead, who graced the Bar, and enlightened
the wisdom of the Court over which presided Chief
Justice Marshall. Assisted by their learning, their
investigations, and arguments, his judicial career fur
nishes a series of closely reasoned decisions which
stand, and will forever stand, enduring monuments of
his intellectual power. His conclusions may not always
command assent, but the force of his reasoning cannot
fail to be felt. Several of these decisions, of a more in
teresting character, perhaps, than the others, though
the ability they display is characteristic of them all,
will now claim our attention. It should be observed,
Tiowever, that it was more particularly in the de
partment of constitutional law that the influence of
Chief Justice Marshall, in the decisions of the Supreme
Court, was most marked and observable. When it
came to the exposition of the Constitution, his col
leagues on the Bench, learned, able, and distinguished
as they were, submitted to his superior wisdom, and
the impress of his mind is indelibly stamped on their
adjudications. His opinions as to the scope of that in
strument, the extent of the powers conferred by it, and
the ends contemplated by its framers, were not the
growth of a day, nor formed after he came to the
Bench. He had borne a part in the deliberations of
the Virginia Convention ; he had participated in the
discussions that had shaken the halls of the Virginia
Legislature respecting the rights of the States, as well
as the rights and powers of the General Government;
and his experience, studies, and reflection had led him
to adopt what has been called the liberal interpreta
tion of the Constitution ; an interpretation which he

CHIEF JUSTICE OF UNITED STATES. 417
believed necessary to secure its benefits, and promote
the intentions of its framers. Hence bis decisions as
a judge, in cases involving questions of constitutional
law, were the natural fruit of the system of construc
tion which he had previously and maturely adopted.
What he thought of the opposing system may be seen
from his opinion in the case of Gibbons v. Ogden.'
'This instrument,' said he, 'contains an enumera
tion of powers expressly granted by the people to their
Government. It has been said that these powers ought
to be construed strictly. But why ought they to be so
construed ? Is there one sentence in the Constitution
which gives countenance to this rule ? In the last of
the enumerated powers, that which grants expressly
the means for carrying all others into execution, Con
gress is authorized "to make all laws which shall be
necessary and proper" for the purpose. But this limi
tation on the means which may be used is not extended
to the powers which are conferred ; nor is there one
sentence in the Constitution, which has been pointed
out by the gentlemen of the Bar, or which we have
been able to discern, that prescribes this rule. We
.do not, therefore, think ourselves justified in adopting
it. What do gentlemen mean by a strict construction?
If they contend only against tluit enlarged construc
tion 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 Consti
tution, would deny to the Government those powers
which the words of the grant, as usually understood.

' Wheaton, vol. ix., p. 187,
Vol, IL — 27

418 LIFE OF JOHN MARSHALL.
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 can
not perceive the propriety of this strict construction, nor
adopt it as the rule by which the Constitution is to be
expounded.' And again : — 'Powerful and ingenious minds taking,
as postulates, that the powers expressly granted to the
Government of the Union are to be contracted, by con
struction, 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 mag
nificent structure, indeed, to look at, but totally unfit
for use. They may so entangle and perplex the un
derstanding 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, to sustain
those principles, and, when sustained, to make them
the tests of the arguments to be examined.' '
And, in his dissenting opinion in the case of Ogden
V. Saunders,^ the Chief Justice incidentally remarked
upon the principles which he thought ought to be ap
plied to to the construction of the Constitution. ' To
say,' he observed, 'that the intention of the instru-
• Wheaton, vol. ix., p. 221. " Ibid., vol. xii., p. 332.

CHIEF JUSTICE OF UNITED STATES. 419
ment must prevail; that this intention must be col
lected from its words ; that its words are to be under
stood 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 insignifi
cance, 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.'
Before proceeding to notice the cases in which the
principles, as thus explained, were applied to the in
terpretation of the Constitution, we shall invite the
reader's attention to several of those criminal and
prize causes which constitute marked features of Mar
shall's judicial career. Of the former class, the treason
trials growing out of the enterprizes of Col. Burr will
necessarily find a place here.
Aaron Burr, whether viewed in the worst or best
aspects of his character, was an extraordinary man.
He was distinguished as a soldier, and, if judged by
the standard of success, had but few superiors as a
lawyer. He was aptly termed 'the subtlest practi
tioner of the times.' ^ In public life he was remarked
for his commanding dignity and impressive oratory ;
and, in private, for an ease and grace, and charm of
manner, which won the regards of men, and dazzled
and captivated women. ' He was brave, affable, muni
ficent, of indomitable energy, of signal perseverance.
In his own person, he combined two opposite natures.
He was studious, but insinuating; dignified, yet seduc-
' His definition of law, however, namely, ' whatever is boldly
asserted and plausibly maintained,' shows the estimate in which he
held his profession, and the ethics he applied to its practice.

420 LIFE OF JOHN MARSHALL.
tive. Success did not intoxicate, nor reverse dismay
him.'^ On the other hand, he is represented as 'pro
fligate in morals, public and private ; selfish and art
ful ; a master in dissimulation, treacherous, cold-hearted,
subtle, intriguing, full of promise, a sceptic in honesty,
a scorner of all things noble and good,' from whom the
people shrank, 'in mistrust, as from a cold and glit
tering serpent.'^
Suspected, and separated, in great measure, from his
own party, by reason of his contest with Jefferson, and
anathematized by the other in consequence of his duel
with Hamilton, Burr found himself, in the maturity
of his years and talents, cut off, apparently, from the
very source of political honors. Being thus debarred
from a career, in his own country, that could give em
ployment to his abilities, and scope to his ambition,
he naturally looked abroad for an appropriate field of
action. At this time, namely, in the spring of 1805,
and at the close of his term as Vice-President of the
United States, the imminence of war with Spain
held out to him a prospect of power and aggrandize
ment. It was well known that there was great dissatisfac
tion throughout Mexico with the mother country;
that the priesthood were very generally disaffected,
and ready to lend their powerful aid in throwing off
the yoke of Spain, provided their privileges were
asserted and secured. The times seemed eminently
favorable for the prosecution of a successful enterprize
against that country; an enterprize, it is stated, which,
in the event of war, and as a means of inflicting a
blow upon Spain, was favored by Mr. Jefferson. 'Burr
saw the glittering prize, and resolved to seize it. He
' Safford's Life of Blennerhassett, p. 182. ^ Ibid.

CHIEF JUSTICE OF UNITED STATES. 421
would conquer this gorgeous realm, and realize, in this
new world, as Napoleon did in the old, a dream of ro
mance.' ' That he also anticipated a separation of the
Western from the Atlantic States, and hoped to profit
by such an event, is probable ; but that it constituted
any part of his project to accomplish, or attempt to
accomplish such separation, is very improbable. 'That
a man of sense and ability should entertain such a
notion, relying for aid on associates whom he knew
would countenance no treason, is a preposterous and
insane supposition. As he said on his death-bed,
he might as well have attempted to seize the moon,
and parcel it out among his followers,'^ There are
some circumstances, however, that seemingly justify
the suspicion that he intended to avail himself of the
discontents existing in the Mississippi and Louisiana
territories, and, if the people were ready for such a
movement, to detach them from the Union,
In the spring of 1805, he visited the Western coun
try, with the view to make arrangements for the con
quest of Mexico, and subordinately to engage in a land
speculation. Through the summer and ' autumn of
that year, everything seemed to favor his project.
War with Spain appeared to be inevitable. The men
of the West, under the impression that Burr's enter
prise was favored by the Administration, were eager
and impatient to enlist under his banner. But, in the
winter of 1805-6, the idea of war with Spain, unless
the United States were actually invaded, was aban
doned by the Administration. Burr, therefore, no
longer had the benefit of that pretext in prosecuting
his designs ; but, nevertheless, he pressed forward to
their accomplishment. During his tour through the

' Safford's Life of Blennerhassett, p. 71. " Ibid., p. 182,

422 LIFE OF JOHN MARSHALL,
West, in 1805, he had an interview with General Wil
kinson, who was then in command of the Western
forces, and, without question, Wilkinson promised to
co-operate with him. With the expectation of such
powerful support. Burr prosecuted his arrangements
with great vigor, and on the 29 th of July, 1806,
being then at Philadelphia, he despatched Samuel
Swartwout to Wilkinson with a letter in cypher; a let
ter which, it is hardly conceivable, so cautious and
astute a person would write, unless a previous under
standing existed with the party to whom it was ad
dressed. The letter, however, related to an enterprise
against the Spanish territories, and had no necessary
or natural reference to any other.
Trusting to Wilkinson's co-operation. Burr proceeded
to the West in August, and commenced active prepa-
parations for his projected enterprise. Boats and stores
of various kinds were collected, and an unusual num
ber of strange faces made their appearance on the Ohio
and its tributary waters. Rumors now began to cir
culate that these circumstances boded no good to the
country ; that a conspiracy had been set on foot to
dismember the Union ; and that designs were medi
tated which were masked from the public eye. Wil
kinson, too, on receiving Burr's communication by
Swartwout, proved, according to Burr, ' a perfidious
villain.' He denounced the enterprise, and adopted
\Qvy vigorous measures to defeat it. Burr's letter he
forwarded to the President; arrested Swartwout, Boll-
man, and others, whom he refused to deliver to the
civil authorities, and proceeded to erect works for the
defence of New Orleans.
On the 27th of November, 1806, the President
issued a proclamation against Burr's proceedings, and
enjoined the arrest of all persons concerned in them.

CHIEF JUSTICE OP UNITED STATES, 423
The result was, that the expedition was broken up,
and Burr arrested, while attempting to escape across
the country to Pensacola, and sent under guard to
Richmond, Virginia, for trial. Swartwout and BoU
man had already been sent to Washington, where they
were committed to prison on a charge of treason against
the United States.
Their counsel moved the Supreme Court, then in
session' at Washington, for a writ o? habeas corpus, to
bring them before that tribunal, that the cause of their
commitment might be inquired into. This motion was
granted. It was then moved that the prisoners be
either discharged or admitted to bail.^
The evidence against Swartwout consisted chiefly
of an affidavit made by General Wilkinson, which
comprehended the substance of Burr's letter, of which
we have seen Swartwout was the bearer, and also
Swartwout's declarations to General Wilkinson.^ The
Court held that Burr's enterprise, as disclosed in bis
letter, related to a foreign power, and, consequently,
was not treasonable; that Swartwout's declarations,
even though they might show a treasonable intention,
afforded no sufficient proof that there was an open
assemblage of men to carry it into execution, without
which the crime of treason had not been consummated ;

' February term, 1807. ^ Cranch, vol. iv., pp. 75-137,
' Swartwout, on an inquiry from Wilkinson, said, ' This territory,
(meaning, probably, the Louisiana territory, though this is not alto
gether clear,) ' would be revolutionized where the people were ready
to join them, and that there would be some seizing, he supposed, at
New Orleans.' He also stated that ' Col. Burr, with the support
of a powerful association extending from New York to New Orleans,
was levying an armed body of seven thousand men from the State of
New York and the Western States and territories, with a view to carry
an expedition to the Mexican territories.'

424 LIFE OF JOHN MARSHALL,
and, consequently, that he could not be held on that
charge. Against BoUman there was no evidence,
whatever, to support a charge of treason, and he was
likewise discharged.
Marshall, Ghief Justice. ' The specific charge brought
against the prisoners is treason in levying war against
the United States.' ' To constitute that specific crime
for which the prisoners now before the Cotirt have
been committed, war must be actually levied against
the United States. However flagitious may be the
crime of conspiring to subvert, by force, the Govern
ment of our country, such conspiracy is not treason.
To conspire to levy war, and actually to levy war, are
distinct offences. The first must be brought into opera
tion by the assemblage of men for a purpose treason
able in itself, or the fact of levying war cannot have
been committed.' ' It is not the intention of the Court
to say that no individual can be guilty of this crime
who has not appeared in arras against his country.
On the contrary, if war be actually levied, that is, if a
body of men be actually assembled for the purpose of
effecting by force a treasonable purpose, all those who
perform any part, however minute, or however remote
from the scene of action, and who are actually leagued
in the general conspiracy, are to be considered as
traitors. But there must be an actual assembling of
men for the treasonable purpose to constitute a levy
ing of war.' ' The application of these general princi
ples to the particular case before the Court will depend
on the testimony which has been exhibited against the
accused.' 'Although, in making a commitment, the
magistrate does not decide on the guilt of the prisoner,
yet he does decide on the probable cause, and a long
and painful imprisonment may be the consequence of

CHIEF JUSTICE OF UNITED STATES. 425
his decision. This probable cause, therefore, ought to
be proved by testimony in itself legal, and which,
though, from the nature of the case, it must be ex
parte, ought, in most other respects, to be such as a
court and jury might hear.'
Marshall held the May term of the Circuit Court for
the district of Virginia, at which indictments were
found against Burr and others for treason, and misde
meanor. The proceedings on the trial, the various
motions that were made, and the various discussions
that took place, were minutely reported, and subse
quently published in two large volumes. We shall
reproduce here, however, only the points that proved
decisive of the cause. The trial, in every respect, was
an interesting one. The nature of the charge against
the prisoner, his acknowledged talents, and the high
positions he had hitherto held, the number and emi
nence of the counsel employed, as well as the conse
quences involved, excited an extraordinary interest in
the community. The indictments were brought in by
the grand jury on the 24th of June, and the trial was
then postponed until the 3d of August.
On that day the Court again assembled ; but it was
not until the 17th of the month that a jury was ob
tained, so general were the prepossessions against the
prisoner and his cause. But, however strongly the
current bad set against him elsewhere, he could confi
dently rely on the Court for impartiality and candor ;
for a firm and faithful administration of the law, unin
fluenced by the wishes of the Government, and unawed
by popular clamor. Burr knew this, and, as the pri
vate memoranda of Blennerhassett show, strongly ex
pressed it.

426 LIFE OP JOHN MARSHALL.
' Burr did not,' says Blennerhassett, ' infer that Chief
J. will, on the present occasion, shrink from his duty,
as an able judge or a virtuous patriot, to avert the re
venge of an unprincipled Government, or avoid other
trials menaced and preparing for himself, by its wretched
partizans. ... I am certain, whatever insects may have
sought the judge's robes, whilst off his back, none will
venture to appear upon the ermine which bedecks his
person.'^ 'Burr's forensic army' consisted of Edmund Ran
dolph, John Wickham, Benjamin Botts, John Baker,
Luther Martin, and Charles Lee, the late Attorney-
General of the United States. Burr, too, was a host
in himself, and discovered great acumen and ability in
conducting his defence. ' The vivacity of his wits,'
says Blennerhassett, ' and the exercise of his proper
talents, now constantly solicited here, in private and
public exhibition, . . . display him, to the eager eyes
of the multitude, like a favorite gladiator, measuring
over the arena of his fame, with firm step and manly
grace, the pledges of easy victory.' ^ The Government
was represented by George Hay, Alexander M'Rae,
and William Wirt.
The indictment contained two counts ; one charging
that the prisoner, with a number of persons unknown,
levied war on Blennerhassett's island, in Wood County,
Virginia; and the other adding the circumstance of
their proceeding from that island down the river, for
the purpose of seizing New Orleans by force. The tes
timony adduced by the prosecution to prove the overt
act laid in the indictment, showed, and the prosecuting
' ' Private Memoranda' of Blennerhassett, kept while confined at
Richmond. American Review for 1845, p. 146,
* Davis's Life of Burr, vol, ii., p, 393.

CHIEF JUSTICE OF UNITED STATES. 427
Attorney admitted, that Burr was not present when
the alleged act was committed. The defence, there
fore, insisted that any testimony that connected him
with those who committed the overt act was irrelevant,
because, conformably to the Constitution of the United
States, no man can be convicted of treason who was
not present when the war was levied ; and because,
even if it were otherwise, no testimony could be re
ceived, to charge one man with the overt acts of others,
until those overt acts, as laid in the indictment, be
proved to the satisfaction of the Court. Besides, it was
contended that the indictment, having charged the
prisoner with levying war on Blennerhassett's island,
and containing no other overt act, could not be sup
ported by proof that war was levied at that place by
other persons, in his absence, even though he was con
nected with such persons in one common treasonable
conspiracy; but, even if this were not the case, the
previous conviction of some person who committed the
act, supposed to constitute a levying of war, was indis
pensable to the conviction of a person who advised or
procured such act. On the part of the prosecution it
was contended that, although the accused was not
actually present with the party assembled at Blenner
hassett's island, he was yet legally present, and, there
fore, might properly be charged in the indictment as
being present in fact. And the opinion of the Court
in ex parte BoUman and Swartwout was relied upon to
sustain this position. The questions thus presented to
the Court were most important; for, if the testimony
objected to was arrested, the prosecution was at an
end. The discussions at the Bar lasted a week, and
' a degree of eloquence seldom displayed on any occa
sion embellished a solidity of argument, and a depth of
research,' which the Chief Justice gracefully acknowl-

428 LIFE OF JOHN MARSHALL.
edged had greatly aided him in the opinion he de-
livfered. He knew and appreciated the responsibility
that rested upon him. He knew that a decision favor
able to the prisoner would subject him to the severest
criticisms; that his motives would be impeached; that
the press would assail him ; and that the public mind,
excited and prejudiced, was liable to be poisoned and
misled. But the. fear of consequences did not for a
moment influence him.
'That this Court,' said he, 'dares not usurp power
is most true. That this Court dares not shrink from
its duty is not less true. No man is desirous of placing
himself in a disagreeable situation. No man is desirous
of becoming the peculiar subject of calumny. No man,
might he let the bitter cup pass from him without self-
reproach, would drain it to the bottom. But if he has
no choice in the case ; if there is no alternative pre
sented to him but a derilection of duty, or the oppro
brium of those who are denominated the world, he
merits the contempt, as well as the indignation of his
country, who can hesitate which to embrace.'
As the prosecution relied on the opinion in ex parte
BoUman and Swartwout, to sustain the positions they
had assumed, the Chief Justice entered into an expla
nation of the general expressions employed by the
Court in that case, in order to show that they did not
warrant the interpretation which had been put upon
them. In that case, the Court had said, 'if war be
actually levied, that is, if a body of men be actually
assembled for the purpose of effecting, by force, a trear
sonable object, all those who perform any part, how
ever minute, or however remote from the scene of ac
tion, and who are actually leagued in the general con
spiracy, are to be considered as traitors.' But, as the

CHIEF JUSTICE OF UNITED STATES. 429
Chief Justice remarked, this opinion did not touch the
case of a person who advised or procured an assem
blage, and did nothing further. It had reference to
the person who performs a part in the actual levying
of war; and this part, however minute or remote, con
stitutes the overt act on which alone the person who
performs it can be convicted. He must be indicted for
the part actually performed by him, and not for a part
which was, in truth, performed by others. If, there
fore, the assemblage on Blennerhassett's island, was an
assemblage in force, was a military assemblage in a
condition to make war,^ and having a treasonable ob
ject, it was, in fact, a levying of war, and, conse
quently, treason. But, as the accused was not present,
and performing a part, as charged, evidence of his acts
elsewhere was irrelevant. In other words, the indict
ment charged him with actually levying war on Blen
nerhassett's island, and, therefore, could not be sup
ported by evidence which showed that he was actually
absent from the scene of action. In short, that the
Government could not state one case, and prove a very
different one; or charge the prisoner with aiding in
one transaction, and prove him to be actually employed
in another. If the prisoner advised, procured, or com
manded the treasonable act, though this might not
' Marshall, Chief Justice. 'An assemblage to constitute an actual
levying of war, should be an assemblage with such force as would jus
tify the opinion that they met for the purpose.' ' Why is an assem
blage absolutely required ? Is it not to judge, in some measure, of
the end by the proportion which the means bear to the end ? Why
is it that a single armed individual, entering a boat and sailing down
the Ohio, for the avowed purpose of attacking New Orleans, could
not be said to levy war ? Is it not that he is apparently not in a con
dition to levy war? If this be so, ought not the assemblage to fur-
ui=h some evidence of its intention and capacity to levy war, before it
u::n amount to levying war?'

430 LIFE OF JOHN MARSHALL.
amount to treason, under the Constitution of the
United States, yet the indictment should have charged
him with what he actually did, and the evidence
should conform to the charge.
Marshall, Ghief J'ustiee. 'The whole treason laid in
this indictment is the levying of war on Blennerhas
sett's island, and the whole question to which the in
quiry of the Court is now directed is, whether the
prisoner was legally present at that fact. I say this
is the whole question, because the prisoner can only
be convicted on the overt act laid in the indictment.
With respect to this prosecution, it is as if no other
overt act existed. If other overt acts can be inquired
into, it is for the sole purpose of proving the particular
fact charged ; it is as evidence of the crime consisting
of this particular fact, not as establishing the general
crime by a distinct fact.' ' It is, then, the opinion of
the Court that this indictment can be supported only
by testimony which prove-s the accused to have been
actually or constructively' present when the assem
blage took place on Blennerhassett's island, or by the
admission of the doctrine that he who procures an act
may be indicted as having performed that act. It is,
further, the opinion of the Court that there is no tes
timony whatever which tends to prove that the accused
was actually or constructively present when that assem
blage did take place. Indeed, the contrary is most
apparent. With respect to admitting proof of procure-
' If the accused, though he had not arrived in the island, had
taken a position near enough to co-operate with those on the island,
to- assist them in any act of hostility, or to aid them if attacked, he,
then, might have been constructively present, and this would have
been a mixed question of law and fact, for the jury, with the aid of
the Court, to decide.

CHIEF JUSTICE OF UNITED STATES. 431
ment to establish a charge of actual presence, the Court
is of opinion that, if this be admissible in England on
an indictment for levying war, which is far from being
conceded, it is admissible only by virtue of the opera^
tion of the common law upon the statute, and, there
fore, is not admissible in this country unless by virtue
of a similar operation ; a point far from being esta
blished, but on which, for the present, no opinion is
given. If however, this point be established, still the
procurement must be proved in the same manner, and
by the same kind of testimony, which would be re
quired to prove actual presence.' ' If those who per- i
petrated the fact be not traitors, he who advised the
fact cannot be a traitor. . . . His guilt, therefore, de
pends on theirs, and their guilt cannot be legally esta
blished in a prosecution against him.' ' Now an assem
blage on Blennerhassett's island is proved by the
requisite number of witnesses, and the Court might
submit it to the jury, whether that assemblage
amounted to a levying of war; but the presence of the
accused at that assemblage being nowhere alleged, ex
cept in the indictment, the overt act is not proved by
a single witness, and, of consequence, all other testi
mony must be irrelevant.'
The jury having heard the opinion of the Court on
the law of the case, brought in a verdict of 'Not
Guilty.' On the 9th of September, Burr was again
arraigned, upon an indictment for a misdemeanor; but
the evidence faUed to support the charge, and again
the verdict of the jury was ' not guilty.'
The published correspondence of Jefferson shows
how keen was his disappointment at the result of these
prosecutions, and how warm his resentment against the
Chief Justice, to whom he deemed that result was

432 LIFE OF JOHN MARSHALL.
attributable. ' Federalism in the Judiciary Depart
ment' ' had always been a subject of annoyance to the
President, and the acquittal of Burr was not likely to
mollify the sentiment. At the next session of Congress
his personal friend, and one of the warmest among the
supporters of his Administration, namely, Mr. Giles,
introduced a bill into the Senate to define treason. He
made a speech in support of it, and ' attacked Chief
Justice Marshall with insidious warmth.' Amongst
other things he said, ' I have learned that judicial
opinions on this subject are like changeable silks,
which vary their colors as they are held up in pohtical
sunshine.' ^ It is easier, however, to impute motives
than to answer arguments ; and as neither the reason
ing of the Chief Justice, nor the conclusions to which
it led, have yet been refuted, we may safely conclude
that the principles by which he was guided were en
tirely correct.
Having failed to convict Burr upon either of the in
dictments, the prosecution now moved to commit him for
trial in Ohio ; and, after hearing the arguments of the
respective parties, the Chief Justice finally held him
to bail in the sum of three thousand dollars to answer
in that State for a misdemeanor, in setting on foot a
military expedition against the Spanish territories.
This decision, naturally enough, was very annoying
to Burr, and he commented upon it with no little bit
terness, ' I found Burr,' says Blennerhassett, before the
decision was pronounced, but when it had been fore
shadowed, ' after a consultation with his counsel,
' Jefferson's Works, vol. v., p. 63, Letter to Bowdoin, April 2d,
1807. See also his letters to George Hay during the progress of the
trial, and at its conclusion, in the same volume.
" Story's Letters, vol. i., p. 157, Letter to Fay, February 13th,
1808.

CHIEF JUSTICE OF UNITED STATES. 433
secretly writhing under much irritation at the conduct
of Judge Marshall, but affecting an air of contempt for
his alleged inconsistencies, as Burr asserted he [the
Judge] did not, for the last two days, understand
either the questions or himself; that he had wavered
in his opinions before yesterday's adjournment, and
should, in future, be put right by strong language. I
am afraid to say abuse, though I think I could swear
to that word.' ' As the Chief Justice was not ' put
right,' according to Burr's conception of that phrase,
we might safely conclude, even in the absence of any
proof as to the propriety of his conduct, that he did
not employ the 'strong language' which he threatened.
To his daughter he wrote, that ' the opinion was a
matter of regret and surprise to the friends of the
Chief Justice, and of ridicule to his enemies ; all be
lieving that it was a sacrifice of principle to conciliate
Jack Cade,' ^ If the decision was a proper one, if it
was legal, even though the firmness and integrity of
the Chief Justice were unknown to us, we might justly
infer that it proceeded from good motives; and upon
the question of law, the opinion of the Chief Justice
will have more weight, perhaps, than the opinion of
Col. Burr,
It would be impossible, and, if possible, improper, in
a work of this character, to go into an examination of
the multitude of prize, commercial, insurance, patent,!
and land cases that were pronounced upon by the Su-\
preme Court in the time of Chief Justice Marshall,
We shall only venture to select from them one or two
prize cases, which will be more likely, perhaps, than
others, to interest the reader. All the leading doctrines

' Davis's Burr, vol. ii., p. 397. September 20th, 1807,
^ Ibid., p. 411. October 23d, 1807.
Vol. IL— 28

434 LIFE OP JOHN MARSHALL.
of prize law were discussed and confirmed by the
Court, and its decisions on this subject constitute an
elaborate and imperishable code. Among the more
celebrated judgments of the Chief Justice, in this
branch of the law, may be mentioned Rose v. HimelyV
the Exchange,^ in which it was held that the capture
of an American vessel, and her subsequent commission
in the service of the capturing Power, stamped her
with the character of foreign nationality, and that the
American owner must look to his Government for
redress; the vessel in such a case, though coming
within the territorial jurisdiction of the American
courts, not being amenable to judicial process; and
the Nereide,' which involved the question whether a
hostile force added to a hostile flag infects with a hos
tile character the goods of a friend. The facts in the
latter case were as follows : —
The Nereide, a British vessel, mounting sixteen guns,
was hired by Manuel Pinto, a merchant of Buenos
Ayres, to transport a cargo belonging to himself and
some of his countrymen from London to Buenos Ayres.
On her passage she was captured by an American pri
vateer, brought into the port of New York, and both
vessel and cargo condemned as lawful prize. From this
decree Mr. Pinto appealed to the Supreme Court. He
was there represented by Emmett and Hoffman; the
captors by Pinkney and Dallas. Emmett and Pinkney
were the opposing champions who attracted most atten
tion, and whose efforts elicited most applause. Their
arguments were among the best displays of their foren
sic abilities.

1

Cranch, vol. iv., p. 241. = Ibid., vol. vii., p. 116.
" Ibid., vol. ix., p. 430. Compare with this case the decision of
Lord Stowell in Dodson's Adm. Rep., vol. i., p. 443, See also The
Atalanta, in Wheaton's Reports, vol. iii., p. 409

CHIEF JUSTICE OF UNITED STATES, 435
Of course it was conceded that the goods of a neutral
on board an unarmed enemy vessel were exempt from
condemnation as prize; but it was contended that the
neutral character was forfeited, if they were placed on
board an armed enemy vessel, inasmuch as the neutral
thereby set in motion an agent of hostUity. If it were
otherwise, if the contrary idea were personified, said
Pinkney, ' we shall have neutraUty, 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 conciUation upon her Up ;
with the spear 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 mere legal discussion, we shall have the branch
of olive entwined around the bolt of Jove, and neu
traUty in the act of hurling the latter under the deceit
ful cover of the former.'
' Call you that neutrality which thus conceals be
neath its appropriate vestments the giant limbs of war,
and converts the charter-party of the counting-house
into a commission of marque and reprisals, which
makes of neutral trade a laboratory of belligerent
annoyance ; which, with a perverse and pernicious in
dustry, warms a torpid serpent into life, and places it
beneath the footsteps of a friend with a more appalling
lustre on its crest, and added venom in its sting;
which, for its selfish purposes, feeds the fire of inter
national discord, which it should rather labor to extin
guish, and, in a contest between the feeble and the
strong, enhances those inequalities that give encou
ragement to ambition, and triumph to injustice?'^
But the Court viewed the subject in a different light.
' Wheaton's Life of Pinkney.

436 LIFE OF JOHN MARSHALL.
MarshaU, Ghief Justice. ' The Nereide was armed,
governed, and conducted by belligerents. With her
force, or her conduct, the neutral shippers had no con
cern ; they deposited their goods on board the vessel,
and stipulated for their direct transportation to Buenos
Ayres. It is true that, on her passage, she had a right
to defend herself, and might have captured an assailing
vessel ; but to search for the enemy would have been
a violation of the charter-party and of her duty,
' With a pencil dipped in the most vivid colors, and
guided by the hand of a master, a splendid portrait
has been drawn, exhibiting this vessel and her freighter
as forming a single figure, composed of the most dis
cordant materials of peace and war. So exquisite was
the skill of the artist, so dazzling the garb.in w^hich
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 Nereide has not that centaur-like appearance
which has been ascribed to her. She does not rove
over the ocean, hurling the thunders of war, while
sheltered by the olive-branch of peace. She is not
composed in part of the neutral character of Mr. Pinto,
and in part of the hostile character of her owner. She
is an open and declared belligerent ; claiming all the
rights, and subject to all the dangers of the belligerent
character. She conveys neutral property which does
not engage in her warlike equipments, or in any em
ployment she may make of them ; which is put on
board solely for the purpose of transportation, and
which encounters the hazard incident to its situation —
the hazard of being taken into port, and obliged to
seek another conveyance, should its carrier be cap
tured. In this, it is the opinion of the majority of the

CHIEF JUSTICE OF UNITED STATES. 437
Court, there is nothing unlaw^ful. The character of
the vessel and the cargo remain as distinct in this as
in any other case.'
Marbury v. Madison' was the first case involving a
constitutional question of any importance, that came
before Chief Justice Marshall. The facts of the case
were these : — Mr. Adams, before the expiration of his
term of office, nominated Marbury to the Senate as
Justice of the Peace for the District of Columbia, and
the Senate approved the nomination. A commission
was then drawn up, signed by the President, and
sealed with the seal of the United States ; but it had
not been delivered when Mr. Jefferson succeeded to
the Presidency, He, thinking the appointment incom
plete until delivery of the commission, countermanded
its delivery, A mandamus was then moved for, com
manding Mr, Madison, the Secretary of State, to de
liver it.
The interposition of the Court was invoked, on the
ground thai they were authorized by an act of Con
gress ' to issue writs of mandamus, in cases warranted
by the principles and usages of law, to any courts ap
pointed, or persons holding office, under the authority
of the United States.' The first question, then, that
naturally presented itself was, whether the authority
thus given to the Supreme Court, to issue writs of
mandamus to pubUc officers, was warranted by the
Constitution, and, if not, whether the Court was com
petent to declare the act void which conferred the
authority ; or, in other words, whether the Supreme
Court possessed the power to declare void an act of
Cono^ress which they deemed repugnant to the Consti
tution ? The order, however, in which the Court

Cranch's Reports, vol. i., p. 158.

438 LIFE OF JOHN MARSHALL.
viewed the subject reversed the objects of inquiry.
They first considered whether Marbury had a right to
the commission which he claimed ? And they decided
that he had ; that an appointment is complete when
the commission is signed by the President ; that the
commission is complete when the seal of the United
iStates has been affixed to it ; and to withhold such
commission from an officer not removable at the will
of the Executive, is violating a vested legal right.
As the legality of his conduct, in directing the Secre
tary of State to withhold the commission from Mar
bury, was involved in this part of the decision, it was
natural, perhaps, that Jefferson should be somewhat
restive under the conclusions at which the Chief Jus
tice arrived. His view of the matter was, that the
validity of a commission, like that of a deed, depends
on delivery ; and as the Court held that they had no
cognizance of the case, be considered their opinion as
to the legality of Marbury's claim 'gratuitous,' 'an
obiter dissertation of the Chief Justice,' and, at all
events, a ' perversion of the law.' ' Whether it be an
irregular and censurable practice, as he termed it, for
a court to express an opinion on the merits of a case
in which they have no jurisdiction, they may, never
theless, do it with very good motives, however those
motives may be questioned. As to the real decision
of the Court, namely, on the question of jurisdiction,
and its power to declare void an unconstitutional act
of Congress, the reasoning and conclusions of the Chief
Justice have commanded universal assent,
Marshall, Ghief Justice. ' The Constitution vests
the whole political power of the United States in one
' Jefferson's Works, vol. vii., p. 290. Letter to Judge Johnson,
June 12th, 1823. See also vol. v., p. 84.

CHIEF JUSTICE OF UNITED STATES. 439
Supreme Court, and such inferior Courts as Congress
shall from time to time ordain and establish,' ' In the
distribution of this power it is declared that "the Su
preme Court shall have original jurisdiction in all cases
affecting Ambassadors, other public Ministers, and
Consuls, and those in which a State shall be a party.
In all other cases the Supreme Court shall have appel
late jurisdiction.' ' To enable this Court, then, to issue
a mandamus, it must be shown to be an exercise of
appellate jurisdiction, or to be necessary to enable them
to exercise appellate jurisdiction,' 'It is the essential
criterion of appellate jurisdiction that it revises and
corrects the proceedings in a cause already instituted,
and does not create that cause. Although, therefore,
a mandamus may be directed to Courts, yet to issue
such a writ to an officer for the delivery of a paper is,
in effect, the same as to sustain an original action for
that paper, and, therefore, seems not to belong to ap
pellate, but to original jurisdiction. Neither is it neces
sary, in such a case as this, to enable the Court to
exercise its appellate jurisdiction. The authority,
therefore, given to the Supreme Court, by the act esta
blishing the Judicial Courts of the United States, to
issue writs of mandamus to public officers, appears not
to be warranted by the Constitution ; and it becomes
necessary to inquire whether a jurisdiction so con
ferred can be exercised.
'The question, whether an act repugnant to the ,
Constitution can become the law of the land, is a ques- j
tion deeply interesting to the United States ; but, hap- r
pily, not of an intricacy proportioned to its interest.' 1
' If an act of the Legislature repugnant to the Consti^
tution is void, does it, notwithstanding its invaUdity,
bind the courts, and oblige them to give it effect ? Or,
in other words, though it be not law, does it constitute

440 LIFE OF JOHN MARSHALL.
a rule as operative as if it was a law ? This would be
to overthrow in fact what was established in theory;
and would seem, at first view, an absurdity too gross
to be insisted on. It shall, however, receive a more
attentive consideration. It is emphatically the pro
vince and duty of the judicial department to say what
the law is. Those who apply the rule to particular
cases must of necessity expound and interpret that
rule. If two laws conflict with each other, the courts
must decide on the operation of each. So, if a law be
in opposition to the Constitution ; if both the law and
the Constitution apply to a particular case, so that the,
court must either decide that case conformably to the
law, disregarding the Constitution ; or, conformably to
the Constitution, disregarding the law; the court must
determine which of these conflicting rules governs the
case. This is of the very essence of judicial duty. If,
then, the courts are to regard the Constitution, and
the Constitution is superior to any ordinary act of the
Legislature, the Constitution, and not such ordinary
act, must govern the case to which they both apply.'
As in the case of Marbury v. Madison, the Supreme
Court declared void an act of Congress which they
deemed repugnant to the Constitution, so in the case
of Fletcher v. Peck,^ tliey declared void, for the same
reason, an act of a State Legislature.^ The Legislature
of Georgia passed an act authorizing a patent to issue,
granting a tract of land within the limits of that State.
After the patent had been granted, a succeeding Legis
lature repealed the act which authorized it. It was
contended that the original act was repugnant to the
Constitution of Georgia; that the Legislature which
' Cranch's Reports, vol. vi. p. 87.
^ This was also done in twenty-six subsequent instances.

CHIEF JUSTICE OF UNITED STATES. 441
passed it was corrupted; and that one Legislature
cannot restrain a succeeding Legislature from repeal
ing its acts.
Marshall, Ghief Justice. ' The question whether a
law be void for its repugnancy to the Constitution is,
at all times, a question of much delicacy, which ought
seldom, if ever, to be decided in the affirmative in a
doubtful case. The Court, when impelled by duty to
render such a judgment, would be unworthy of its sta
tion, could it be unmindful of the solemn obligations
which that station imposes. But it is not on slight
implication and vague conjecture that the Legislature
is to be pronounced to have transcended its powers,
and its acts to be considered as void. The opposition
between the Constitution and the law should be such
that the judge feels a clear and strong conviction of
their incompatibility with each other. In this case
•the Court can perceive no such opposition. In the
Constitution of Georgia, adopted in the year 1789, the
i Court can perceive no restriction on the Legislative
powers which inhibits the passage of the act of 1795.
The Court cannot say that, in passing that act, the
Legislature has transcended its powers and violated
the Constitution.'
' The case, as made out in the pleadings, is simply
this. An individual who holds lands in the State of
Georgia, under a deed covenanting that the title of
Georgia was in the grantor, brings an action of cove
nant upon this deed, and assigns as a breach that
some of the members of the Legislature were in
duced to vote in favor of the law which consti
tuted the contract, by being promised an interest in
it; and that, therefore, the act is a mere nullity.
This solemn question cannot be brought thus col-

442 LIFE OF JOHN MARSHALL.
laterally and incidentally before the Court. It would
be indecent in the extreme, upon a private contract
between two individuals, to enter into an inquiry
respecting the corruption of the sovereign power of a
State. If the title be plainly deduced from a Legisla
tive act which the Legislature might constitutionally
pass, if the act be clothed with all the requisite forms
of law, a court, sitting as a court of law, cannot sus
tain a suit brought by one individual against another,
founded on the allegation that the act is a nullity in
consequence of the impure motives which influenced
certain members of the Legislature which passed the
law.' ' The principle asserted is, that one Legislature is
competent to repeal any act which a former Legisla
ture was competent to pass, and that one Legislature
cannot abridge the powers of a succeeding Legislature.
The correctness of this principle, so far as it respects
general legislation, can never be controverted. But,
if an act be done under a law, a succeeding Legislature
cannot undo it. The past cannot be recalled by the
most absolute power. Conveyances have been made,
those conveyances have vested legal estates, and if
those estates may be seized by the sovereign authority,
still that they originally vested is a fact, and cannot
cease to be a fact. When, then, a law is in its nature
a contract, when absolute rights have vested under
that contract, a repeal of the law cannot divest those
rights.' 'The validity of this rescinding act, then,
might be doubted, were Georgia a single sovereign
power. But Georgia cannot be viewed as a single, un
connected^ sovereign power, on whose Legislature no
other restrictions are imposed than may be found in its
own Constitution. She is a part of a large empire; she
is a member of the American Union ; and that Union

CHIEF JUSTICE OF UNITED STATES. 443
has a Constitution, the supremacy of which all acknow
ledge, and which imposes limits to the Legislatures of
the several States, which none claim a right to pass.
The Constitution of the United States declares that
"no State shall pass any bill of attainder, ex post facto
law, or law impairing the obligation of contracts."
' Does the case now under consideration come within
this prohibitory section of the Constitution ? In con
sidering this very interesting question we immediately
ask ourselves. What is a contract ? Is a grant a con
tract ?' ' A contract executed is one in which the
object of contract is performed ; and this, says Black-
stone, differs in nothing from a grant. The contract be
tween Georgia and the purchasers was executed by the
grant. A contract executed, as well as one which is
executory, contains obligations binding on the parties.
A grant, in its own nature, amounts to an extinguish
ment of the right of the grantor, and implies a contract
not to reassert that right. A party is, therefore, always
estopped by bis own grant,' ' If, under a fair construc
tion of the Constitution, grants are comprehended
under the term "contracts," is a grant from a State
excluded from the operation of the provision ? Is the
clause to be considered as inhibiting the State from
impairing the obUgation of contracts between two indi
viduals, but as excluding from that inhibition contracts
made with itself? The words themselves contain no
such distinction. They are general, and are applicable
to contracts of every description,' ' Why, then, should
violence be done to the natural meaning of words for
the purpose of leaving to the Legislature the power of
seizing, for public use, the estate of an individual, in
the form of a law annuUing the title in which he holds
that estate? The Court can perceive no sufficient
grounds for making this distinction.'

444 LIFE OF JOHN MARSHALL.
The case of Dartmouth College,' from some acci
dental circumstances connected with it, and from the
importance of the principle which it established,
namely, that a grant of corporate powers is a contract,
the obligation of which the States are inhibited to im
pair, attracted great attention at the time, and has lost
but little of its interest since.
The facts of the case were as follows : — A charter.
was granted to Dartmouth College, in 1769, by the
Crown, on the representation that property would be
given the College, if chartered ; and, after the charter
was granted, property was actually given. In 1816,
the Legislature of New Hampshire passed three acts,
amending the charter, which amendment the trustees
would not accept. They invoked the aid of the State
Courts; but judgment being given against them, they
carried their case to the Supreme Court. There they
were represented by Mr. Hopkinson and Mr. Webster;
and the other side by Mr. Wirt, then Attorney-General
of the United States, and Mr. Holmes.
The chief interest of the argument consisted in the
speeches of Webster and Wirt. The former had argued
the case in the State Courts, was familiar with the
whole field of controversy, was a graduate of the Col
lege, and his feelings as a man combined with his am
bition as an advocate to urge him to the utmost exer
tion of his powers. He addressed the Court for more
than four hours, in an argument marked by his usual
characteristics — clearness of statement, force and pre
cision of reasoning.
' The argument ended,' says an eye-witness,^ ' Mr.
' Wheaton, vol. iv., p. 518.
' Prof. Goodrich, of Yale College. Vide Choate's Eulogy on Web
ster.

CHIEF JUSTICE OF UNITED STATES. 445
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 institution — it is the case of every
college in our land. It is more. It is the case of
every eleemosynary institution throughout our coun
try — 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 be 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?"
Sir, you may destroy this little institution ; it is weak ;
it is in your hands I 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 quivered ; his firm cheeks trembled with emo
tion; 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 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

446 LIFE OF JOHN MARSHALL.
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 un
premeditated, 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 extremi
ties, pressing, as it were, towards a single point, while
the audience below were wrapping themselves around
in closer folds beneath the bench, to catch every 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 — it would be one of the most touching pic
tures in the history of eloquence.' ' 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 reite
rating stab upon stab, I would not, for this right hand,
have her turn to me and say, " et tu quoque mi fill."
And thou, too, my son ! He sat down. There was a
death-like stillness throughout the room for some mo
ments; every one seemed to be slowly recovering

CHIEF JUSTICE OF UNITED STATES. 447
himself, and coming graduaUy back to his ordinary
range of thought and feeling.'
The argument of Mr. Wirt in support of the acts
of the Legislature amendatory of the College charter,
though overshadowed by Mr. Webster's, ' was a fuU,
able, and most eloquent exposition of the rights of the
defendant.' '
The opinion of the Court was delivered by
Marshall, Ghief Justice. ' This is plainly a contract,
to which the donors, the trustees, and the Crown (to
whose rights and obligations New Hampshire suc
ceeds), were the original parties. It is a contract made
on a valuable consideration. It is a contract for the
security and disposition of property. It is a contract,
on the faith of which real and personal estate has
been conveyed to the corporation. It is, then, a con-
' Webster to Wirt. Kennedy's Wirt, vol. ii., p. 82. It detracts
somewhat from the value of Mr. Webster's commendation, when we
find him, at the same time, writing thus to his friend, Jeremiah
Mason : — ' Wirt followed. He is a good deal of a lawyer, and
has very quick perceptions, and handsome power of argument ; but
he seemed to treat this case as if his side could furnish nothing but
declamation.' Private Correspondence, vol. i., p. 275. March 13th,
1818. Again, in writing to Chief Justice Smith, he says : — ' Wirt has
talents, is a competent lawyer, and argues a good cause well. In this
case he said more nonsensical things than became him.' Ibid., p.
276. March 14th, 1818.
Nevertheless, and notwithstanding Mr. Pinkney, who desired to
have the argument reopened, in order that he might address the
Court in support of the assumed right of the State to amend the Col
lege charter, declared that Wirt's back was not strong enough for
such a case, his argument must be considered as one of very great
merit.

448 LIFE OF JOHN MARSHALL.
tract within the letter of the Constitution, and within
its spirit, also, unless the fact, that the property is in
vested by the donors in trustees for the promotion of
religion and education, for the benefit of persons who
are perpetually changing, though the objects remain
the same, shall create a particular exception, taking
this case out of the prohibition contained in the Con
stitution. ... On what safe and intelligible ground
can this exception stand ? There is no expression in
the Constitution, no sentiment delivered by its cotem
poraneous expounders, which would justify us in
making it. In the absence of all authority of this
kind, is there, in the nature and reason of the case
itself, that which would sustain a construction of the
Constitution not warranted by its words ? Are con
tracts of this description of a character to excite so lit
tle interest, that we must exclude them from the pro
visions of the Constitution, as being unworthy of the
attention of those who framed the instrument? Or
does public policy so imperiously demand their remain
ing exposed to Legislative alteration, as to compel us,
or rather permit us, to say that these words, which
were introduced to give stability to contracts, and
which, in their plain import, comprehend this contract,
must 3'et be so construed as to exclude it ?'
An examination of the subject induces a negative
answer to these queries ; and, hence, the opinion of
the Court being, that the charter constituted a con
tract, whose obligation had been impaired by the Le
gislature of New Hampshire, it followed that the action
of the Legislature was repugnant to the Constitution
of the United States, and consequently void.
At the same term of the Court that the case of
Dartmouth College was argued, was also argued the

CHIEF JUSTICE OF UNITED STATES. 449
case of M'CuUoch v. The State of Maryland.' It in
volved the question as to the constitutionality of the
act incorporating the Bank of the United States. It
had been a vexed question from the foundation of the
Government. The opponents of the Bank insisted
that no clause of the Constitution authorized Congress
to create a corporation ; that, though they were em
powered to make all laws 'necessary and proper' to
carry into effect the powers conferred on the Govern
ment, yet such laws were only 'necessary and proper,'
as were absolutely indispensable, and without which
the powers conferred would be nugatory. On the other
hand, it was contended, that, to carry on its operations,
the Government must employ persons, and that their
acting in an artificial capacity was not material, as
the Government must be authorized to exercise a dis
cretion in the choice of agents, and that the power to
make all ' necessary and proper' laws to carry into
execution the enumerated powers, did not restrict Con
gress to the passage of only such laws as were abso
lutely necessary, but to such as were 'necessary' in
the ordinary and usual meaning of the word. The
case presented for the decision of the Court arose as
follows : —
In April, 1816, Congress incorporated the Bank of
the United States. In 1817, a branch of this Bank
was placed at Baltimore, Maryland. In 1818, the
Legislature of Maryland passed a law to tax all banks,
or branches thereof, located in that State, and not
chartered by its Legislature. The branch Bank re
fused to pay this tax, and M'CuUoch, the cashier, was
sued for it. Judgment being given against him in the
Maryland Courts, he carried it before the Supreme

' Wheaton, vol. iv., p. 316.
Vol. il — 29

450 LIFE OF JOHN MARSHALL.
Court. Naturally enough, the decision of this tribunal
was looked for with eager interest.
The counsel employed on either side were of the
highest professional eminence. Pinkney, Wirt, and
Webster appeared for the Bank; and Martin, Hopkin
son, and Jones for the State. Pinkney shone, on this
occasion, with unrivalled splendor. He made the
closing argument. ' I never, in my whole life,' says
Judge Story, ' heard a greater speech. It was worth
a journey from Salem to hear it ; his elocution was ex
cessively vehement, but his eloquence was overwhelm
ing. His language, his style, his figures, his argu
ments, were most brilliant and sparkling. He spoke
like a great statesman and patriot, and a sound consti
tutional lawyer. All the cobwebs of sophistry and
metaphysics about State rights and State sovereignty,
he brushed away as with a mighty besom  Mr.
Pinkney possesses, beyond any man I ever saw, the
power of elegant and illustrative amplification."
The opinion of the Court was, that the act incorpo
rating the Bank was constitutional; that the Bank
might properly establish a branch in the State of
Maryland; and that Maryland could not, without
violating the Constitution, tax that branch.
Marshall, Ghief Justice. 'Although, among the enu
merated powers of Government, we do not find the
word " bank," or " incorporation," we find the great
powers to lay and collect taxes, to borrow money, to
regulate commerce, to declare and conduct a war, and
to raise and support armies and navies. The sword
and the purse, all the external relations, and no incon
siderable portion of the industry of the nation, are
' Story's Life and Letters, vol. i., p. 325. Story to White, March
3d, 1819.

CHIEF JUSTICE OF UNITED STATES. 451
entrusted to its government.' 'The power being given,
it is the interest of the nation to facilitate its execu
tion. It can never be their interest, and cannot be
presumed to have been their intention, to clog and
embarrass its execution by withholding the most ap
propriate means. Throughout this vast Republic, from
the St. Croix to the Gulf of Mexico, from the Atlantic
to the Pacific, revenue is to be collected and expended,
armies are to be marched and supported. ... Is that
construction of the Constitution to be preferred which
would render these operations difficult, hazardous, and
expensive ? Can we adopt that construction (unless
the words imperiously require it) which would impute
to the framers of that instrument, when granting these
powers for the public good, the intention of impeding
their exercise by withholding a choice of means ?'
' The Government which has a right to do an act, and
has imposed on it the duty of performing that act,
must, according to the dictates of reason, be allowed to
select the means ; and those who contend that it may
not select any appropriate means, that one particular
mode of effecting the object is excepted, take upon
themselves to prove the exception. . . . But the Con
stitution of the United States has not left the right of
Congress to employ the necessary means for the execu
tion of the powers conferred on the Government to
general reasoning. To its enumeration of powers is
added that of making "all laws which shaU be neces
sary and proper for carrying into execution the fore
going powers, and all other powders vested by this Con
stitution in the Government of the ITnited States, or
in any department thereof" To employ the means
necessary to an end is generaUy understood as employ-
in «¦ any means calculated to produce the end, and not
as bein«' confined to those single means without which

452 LIFE OF JOHN MARSHALL.
the end would be entirely unattainable. . . . The good
sense of the public has pronounced, without hesitation,
that the power of punishment appertains to sove
reignty, and may be exercised whenever the sovereign
has a right to act, as incidental to his constitutional
powers. It is a means for carrying into execution all
sovereign powers, and may be used, although not in
dispensably necessary. It is a right incidental to the
power, and conducive to its beneficial exercise.' 'If the
word necessary means needful, essential, requisite, con
ducive to, in order to let in the power of punishment
for the infraction of law,' why is it not equally com
prehensive when required to authorize the use of
means which facilitate the execution of the powers of
government without the infliction of punishment ?'
Having thus arrived at the conclusion that the
creation of a bank is warranted by the Constitution,
the Chief Justice proceeds to inquire whether it or its
branches may be taxed by the States.
' That the power to tax,' said he, ' involves the
power to destroy ; that the power to destroy may de
feat and render useless the power to create; that there
is a plain repugnance in conferring oh one government
a power to control the constitutional measures of
another, which other,' with respect to those very mea
sures, is declared to be supreme over that which exerts
the control, are propositions not to be denied.' 'If the
' As in the case of the power ' to establish post-offices and post-
roads.' From this has been inferred, without question or denial, the
power to carry the mail along the post-road, from one post-office to
another ; and from this inferred power has again been inferred the
right to punish those who steal letters from the post-office, or rob the
mail.

CHIEF JUSTICE OF UNITED STATES. 453
States may tax one instrument employed by the Gov
ernment in the execution of its powers, they may tax
any and every other instrument. They may tax the
mail; they may tax the mint; they may tax patent-
rights ; they may tax the papers of the custom-house ;
they may tax judicial process ; they may tax all the
means employed by the Government, to an excess
which would defeat all the ends of government. This
was not intended by the American people. They did
not design to make their Government dependent on
the States.^
In the case of Cohens v. State of Virginia,^ two very
important questions were presented for adjudication,
namely, whether the Court could exercise jurisdiction,
one of the parties being a State, and the other a citi
zen of that State; and, secondly, whether, in the exer
cise of its appellate jurisdiction, it could revise the
judgment of a State Court, in a case arising under the
Constitution, laws, and treaties of the United States.
The Court held that it had jurisdiction in both in
stances. The facts involved in the case were these: — An act
of Congress authorized the city of Washington to esta
blish a lottery, and, by virtue of the act, the lottery
was established. Cohen was indicted, at Norfolk, Vir
ginia, for selling tickets of this lottery, contrary to a
law of Virginia, prohibiting such sale. In the State
Court, he claimed the protection of the act of Congress
under which the lottery was established; but judgment
being given against him, he sued out a writ of error to
' Weston V. City of Charleston (Peters, vol. ii., p. 449) was decided
on similar principles ; the Court holding that stock issued for bans to
the Government cannot be taxed by States and corporations.
2 Wheaton, vol. vi., p. 264.

454 LIFE OF JOHN MARSHALL.
the Supreme Court of the United States. There the
judgment of the State Court was sustained ; it being
held that the lottery law did not control the laws of
the States prohibiting the sale of the tickets. The
chief interest of the case, however, depended on the
question, whether the Supreme Court could take cog
nizance of it. And it is with reference to that point
that the opinion of the Court is quoted.
Marshall, Ghief Justice. 'It [the Supreme Court]
is authorized to decide all cases, of every description,
arising under the Constitution or laws of the United
States. From this general grant of jurisdiction no ex
ception is made of those cases in which a State may be
a party. When we consider the situation of the Gov
ernment of the Union and of a State in relation to
each other, the nature of our Constitution, the subor
dination of the State Governments to that Constitu
tion, the great purpose for which jurisdiction over all
cases arising under the Constitution and laws of the
United States is confided to the Judicial Department,
are we at liberty to insert in this general grant an ex
ception of those cases in which a State may be a party?
Will the spirit of the Constitution justify this attempt
to control its words ? We think it will not. We think
a case arising under the Constitution or laws of the
United States is cognizable in the Courts of the Union,
whoever may be the parties to that case.' 'The laws
must be executed by individuals acting within the
several States. If these individuals may be exposed to
penalties, and if the Courts of the Union cannot correct
the judgments by which these penalties may be en
forced, the course of the Government may be, at any
time, arrested by the will of one of its members. Each
member will possess a veto on the will of the whole.'

CHIEF JUSTICE OF UNITED STATES. 455
'That the United States form, for many and fo^-
most important purposes, a single nation has not yet
been denied.' ' These States are constituent parts of
the United States. They are members of one great
empire — for some purposes sovereign, for some pur
poses subordinate. In a government so constituted, is
it unreasonable that the judicial power should be com
petent to give efficacy to the constitutional laws of the
Legislature? That department can decide on the
validity of the Constitution or law of a State, if it be
repugnant to the Constitution or to a law of the United
States Is it unreasonable that it should also be em
powered to decide on the judgment of a State tribunal
enforcing such unconstitutional law ? Is it so very un
reasonable as to furnish a justification for controlling
the words of the Constitution? We think not, , , .
The exercise of the appellate power over those judg
ments of the State tribunals which may contravene the
Constitution or laws of the United States is, we believe,
essential to the attainment of those objects,'
In the case of Johnson v. M'Intosh,' the Court held,
that the Indians have only a right of occupancy to
their lands, and are incapable to convey a title to them
in fee. The plaintiff claimed certain lands under a
private purchase from the Indians; the defendant held
under the United States.
Marshall, CJiief Justice. ' We wUl not enter into
the controversy, whether agriculturists, merchants, and
manufacturers have a right, on abstract principles, to
expel hunters from the territory they possess, or to
contract their limits. Conquest gives a title which

' Wheaton, vol. viii., p. 543.

456 LIFE OF JOHN MARSHALL.
the courts of the conqueror cannot deny, whatever the
private and speculative opinions of individuals may be,
respecting the original justice of the claim which has
been successfully asserted.' ' However extravagant
the pretension of converting the discovery of an inha
bited country into conquest may appear; if the princi
ple has been asserted in the first instance, and after
wards sustained ; if a country has been acquired and
held under it ; if the property of the great mass of the
community originates in it, it becomes the law of the
land, and cannot be questioned. So, too, with respect
to the concomitant principle, that the Indian inhabi
tants are to be considered merely as occupants, to be
protected, indeed, while in peace, in the possession of
their lands, but to be deemed incapable of transferring
the absolute title to others. However this restriction
may be opposed to natural right, and to the usages of
civilized nations, yet, if it be indispensable to that sys
tem under which the country has been settled, and be
adapted to the actual condition of the two people, it
may, perhaps, be supported by reason, and certainly
cannot be rejected by courts of justice.'
Gibbons v. Ogden' was a case of great celebrity, and
involved considerations of the most important charac
ter. New York granted to Robert R. Livingston and
Robert Fulton, for a term of years, the exclusive right
to navigate the waters of that State with boats moved
by steam. From them Ogden derived the right to use
such boats in the waters between Elizabethtown, New
Jersey, and the city of New York, Gibbons put two
steamboats on that route, and claimed that be had a
right to do so, inasmuch as his boats were regularly
' Wheaton, vol. ix., pp, 1-240.

CHIEF JUSTICE OF UNITED STATES. 457
hcensed under the laws of Congress. The rights of
the parties were Utigated in the Courts of New York,
and both the Court of Chancery and the Court of
Errors sustained the validity of the State laws. Gib
bons now brought his case before the Supreme Court
of the United States. It had attracted universal atten
tion, and the opinion of the tribunal of last resort was
awaited with eager interest.
Webster and Wirt appeared for Gibbons, and Emmet
and Oakly for Ogden. ' To-morrow begin my toils in
the Supreme Court,' wrote Wirt to his friend Judge
Carr, ' and about to-morrow week wiU come on the
great steamboat question from New York. Emmet and
Oakly on one side, Webster and myself on the other.
Come down and hear it. Emmet's whole soul is in the
cause, and he will stretch all his powers. Oakly is
said to be one of the first logicians of the age ; as much
a Phocion as Emmet is a Themistocles ; and Webster
is as ambitious as Caesar. He 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.' '
The argument on both sides was conducted with
consummate ability, but to Mr. Webster belongs the
credit of suggesting the ground which constituted the
basis of the reasoning and conclusions of the Court.
The proposition/he maintained was, that Congress has
the exclusive authority to regulate commerce in all its
forms, on all the navigable waters of the United States,
their bays, rivers, and harbors, without any monopoly,
restraint, or interference created by State legislation.
It is said that ' Mr. Webster having stated his posi
tions to the Court, Judge Marshall laid down his pen,
' Kennedy's Wirt, vol. ii., p. 142. Letter to Carr, February 1st,
1824

458 LIFE OF JOHN MARSHALL.
turned up his coat-cuffs, dropped back upon his chair,
and looked sharply upon him ; that Mr. Webster con
tinued to state bis propositions in varied terms, until
he saw his eyes sparkle, and his doubts giving way ;
that he then gave full scope to his argument; and
that he never felt the occasion of putting forth his
powers as when he was arguing a question before
Judge MarshaU."
Marshall, Ghief Justice. ' The word [commerce]
used in the Constitution comprehends, and has been
always understood to comprehend, navigation, within
its meaning ; and a power to regulate navigation is as
expressly granted as if that term had been added to
the word " commerce." ^ To what commerce does this
power extend ? The Constitution informs us, to com
merce " with foreign nations, and among the several
States, and with the Indian tribes." " It has been
truly said that commerce, as the word is used in the
Constitution, is a unit, every part of which is indicated
by the term. If this be the admitted meaning of the
word, in its application to foreign nations, it must
carry the same meaning throughout the sentence, and
remain a unit, unless there be some plain, intelligible
cause which alters it. The subject to which the power
is most applied is to commerce " among the several
States." The word " among" means intermingled
with. A thing which is among others is intermingled
with them. Commerce among the States cannot stop
at the external boundary line of each State, but may
be introduced into the interior. It is not intended to
say that these words comprehend that commerce which
' ' Daniel Webster as a Jurist,' by Joel Parker, LL.D.
" See Marshall's opinion to the same effect in the case of the Brig
Wilson, Brockenbrough's C. C. R., vol. i., p. 423.

CHIEF JUSTICE OF UNITED STATES. 459
is completely internal, which is carried on between
man and man in a State, or between different parts of
the same State, and which does not extend to or affect
other States. Such a power would be inconvenient,
and is certainly unnecessary. Comprehensive as the
word " among" is, it may very properly be restricted
to that commerce which concerns more States than
one.' ' What is commerce " among" them ? [the States,]
and how is it to be conducted ?' ' Commerce among
the States must, of necessity, be commerce with the
States. . . . The power of Congress, then, whatever
it may be, must be exercised within the territorial
jurisdiction of the several States.' 'What is this
power ? It is the power to regulate ; that is, to pre
scribe the rule by which commerce is to be governed.
This power, like all others vested in Congress, is com
plete in itself, may be exercised to its utmost extent,
and acknowledges no limitations other than are pre
scribed in the Constitution.' ' It has be^n contended
by the counsel for the appellant, that, as the word "to
regulate" implies in its nature full power over the
thing to be regulated, it excludes, necessarily, the
action of all others that would perform the same
operation on the same thing. That regulation is de
signed for the entire result, applying to those parts
which remain as they were, as well as to those which
are altered. It produces a uniform whole, which is as
much disturbed and deranged by changing what the
regulating power designs to leave untouched, as that
on which it has operated. There is great force in this
argument, and the Court is not satisfied that it has
been refuted. Since, however, in exercising the power
of regulating their own purely internal affairs, whether
of trading or police, the States may sometimes enact

460 LIFE OF JOHN MARSHALL.
laws, the validity of which depends on their interfering
with, and being contrary to, an act of Congress passed
in pursuance of the Constitution, the Court will enter
upon the inquiry, whether the laws of New York, as
expounded by the highest tribunal of that State, have,
in their application to this case, come into collision
with an act of Congress, and deprived a citizen of a
right to which that act entitles him.'
The result of the inquiry was, that the acts of New
York were in collision with the act of Congress under
which Gibbons derived his coasting license, and conse
quently, must yield to it; the Constitution and the
laws made in pursuance of it being supreme.
In the case of Osborn v. The United States Bank,^
among other questions presented for the decision of
the Court was the very difficult one, whether, since
the Constitution has exempted a State from the suits
of citizens of other States, the Supreme Court may act
upon the agents employed by the State, and on the
property in their hands ? Or, in other words, though
the Court has no jurisdiction where the suit is against
the State directly, has it such jurisdiction where the
State, though not directly a party, is so indirectly, in
consequence of her agents, acting by her order, and
executing her mandates, being substituted in her
place? Marshall, Ghief Justice. 'A denial of jurisdiction
forbids an inquiry into the nature of the case. It ap
plies to cases perfectly clear in themselves ; to cases
where the Government is in the exercise of its best
established and most essential powers, as well as to
those which may be deemed questionable. It asserts
' Wheaton, vol. ix., p. 738.

CHIEF JUSTICE OF UNITED STATES. 461
that the agents of a State, alleging the authority of a
law void in itself, because repugnant to the Constitu
tion, may arrest the execution of any law of the United
States. It maintains that, if a State shall impose a
fine or penalty on any person employed in the execu
tion of any law of the United States, it may levy that
fine or penalty by a ministerial officer, without the
sanction even of its own courts; and that the indi
vidual, though he perceives the approaching danger,
can obtain no protection from the judicial department
of the Government. The carrier of the mail, the col
lector of the revenue, the marshal of a district, the re
cruiting officer, may all be inhibited, under ruinous
penalties, from the performance of their respective
duties ; the warrant of a ministerial officer may autho
rize the collection of these penalties, and the person
thus obstructed in the performance of his duty may,
indeed, resort to his action for damages, after the in
fliction of the injury, but cannot avail himself of the
primitive justice of the nation to protect him in the
performance of his duties. Each member of the Union
is capable, at its will, of attacking the nation, of arrest
ing its progress at every step, of acting vigorously and
effectually in the execution of its designs ; while the
nation stands naked, stripped of its defensive armor,
and incapable of shielding its agent or executing its
laws, otherwise than by proceedings which are to take
place after the mischief is perpetrated, and which must
often be ineffectual, from the inability of the agents
to make compensation.'
'The question, then, is, whether the Constitution of
the United States has provided a tribunal which can
peacefully and rightfully protect those who are em
ployed in carrying into execution the laws of the
Union, from the attempts of a particular State to resist

462 LIFE OF JOHN MARSHALL.
the execution of those laws. The State of Ohio denies
the existence of this power, and contends that no pre
ventive proceedings wbatever, or proceedings against
the very property which may have been seized by the
agent of a State, can be sustained against such agent,
because they would be substantially against the State
itself, in violation of the eleventh amendment of the
Constitution.' ' Do the provisions, then, of the Ameri
can Constitution, respecting controversies to which a
State may be a party, extend, on a fair construction
of that instrument, to cases in which the State is not
a party on the record ?' ' It may, we think, be laid
dowm, as a rule which admits of no exception, that, in
all cases where jurisdiction depends on the party, it is
the party named on the record. Consequently, the
eleventh amendment, which restrains the jurisdiction
granted by the Constitution over suits against States,
is, of nece-ssity, limited to those suits in which a State
is a party on the record. The amendment has its full
effect, if the Constitution be construed as it would have
been construed, had the jurisdiction of the Court never
been extended to suits brought against a State by the
citizens of another State, or by aliens,'
In the case of Brown v. The State of Maryland,' the
interesting question came before the Court, whether a
State can constitutionally require the importer of
foreign articles to take out a license from the State,
before being permitted to sell a bale or package so im
ported ?
Marshall, Ghief Justice. 'There is no difference, in
effect, between a power to prohibit the sale of an arti-
' Wheaton, vol. xii., p. 419.

CHIEF JUSTICE OF UNITED STATES. 463
cle and a power to prohibit its introduction into the
country. The one would be a necessary consequence
of the other. No goods would be imported, if none
could be sold. No object of any description can be
accomplished by laying a duty on importation, which
may not be accomplished with equal certainty by lay
ing a duty on the thing imported in the bauds of the
importer. It is obvious that the same power which
imposes a light duty can impose a very heavy one, one
which amounts to a prohibition. Questions of power
do not depend on the degree to which it may be exer
cised. If it may be exercised at all, it must be exer
cised at the will of those in whose hands it is placed.
If the tax may be levied in this form by a State, it
may be levied to an extent which will defeat the reve
nue by import, so far as it is drawn from importations
into the particular State.' ' It is sufficient, for the pre
sent, to say, generally, that, when the importer has so
acted upon the thing imported that it has become in
corporated and mixed up with the mass of property in
the country, it has, perhaps, lost its distinctive charac
ter as an import, and has become subject to the taxing
power of the State ; but while remaining the property
of the importer, in his warehouse, in the original form
or package in which it was imported, a tax upon it is
too plainly a duty on imports to escape the prohibi
tion in the Constitution.' ' It may be proper to add,
that we suppose the principles laid down in this case
to apply equally to importations from a sister State.
We do not mean to give any opinion on a tax discri
minating between foreign and domestic articles.' '
' In connection with this case the reader will do well to read the
cases of Thurlow i;. Massachusetts; Fletcher «. Rhode Island; and
Pierce v. New Hampshire; Howard's Reports, vol. v., p. 504.

464 LIFE OF JOHN MARSHALL.
In the case of Craig v. The State of Missouri,' an act
of that State establishing loan offices, and authorizing
the issue of certificates of stock, was declared void, as
being repugnant to that clause of the Constitution
which prohibits the States from emitting bills of
credit. Marshall, Chief Justice. 'What is the character of
the certificates issued by authority of the act under
consideration? What office are they to perform?
Certificates, signed by the auditor and treasurer of the
State, are to be issued by those officers, to the amount
of two hundred thousand dollars, of denominations not
exceeding ten dollars, nor less than fifty cents. The
paper purports, on its face, to be receivable at the trea
sury, or at any loan office of the State of Missouri, in
discharge of taxes or debts due to the State.' ' Had
they been termed "bills of credit," instead of "certifi
cates," nothing would have been wanting to bring them
within the prohibitory words of the Constitution. And
can this make any real difference ? Is the proposition
to be maintained, that the Constitution meant to pro
hibit names and not things? That a very important
act, big with great and ruinous mischief, which is ex
pressly forbidden by words most appropriate for its
description, may be performed by the substitution of a
name? That the Constitution, in one of its most im
portant provisions, may be openly evaded by giving a
new name to an old thing? We cannot think so. We
think the certificates emitted under the authority of
this act are as entirely bills of credit as if they had
been so denominated in the act itself.' ^
' Peters' Reports, vol. iv., p. 411.
^ Compare Byrne v. The State of Missouri, Peters' Rep., vol. viii.,
p. 40 ; and Briscoe v. The Bank of Kentucky, ibid., vol. xi., p. 257.

CHIEF JUSTICE OF UNITED STATES, 465
The case of The Cherokee Nation v. The State of
Georgia,' which came before the Court at the January
term, 1831, attracted universal attention, and was
well calculated to enlist the sympathies of the Ameri
can people in behalf of the unfortunate Indians, whose
clear and undeniable rights had been wrested from
them by Georgia, without reference to the obligations
the Government of the United States owed to them,
and without any other consideration than to get rid of
them and possession of their lands. But, while the
conduct of Georgia is without justification, when
viewed solely with reference to the Indians, it must
be admitted, we think, that there was much in the
policy of the General Government to provoke it, as
the following brief statement of the case will show.
By treaty with the Indians in 1791, the Government
guaranteed to them their lands. By agreement with
Georgia, in 1802, the Government, in consideration
of the cession to the United States by Georgia of the
territory now included within the limits of Alabama
and Mississippi, undertook to extinguish the title of
the Indians to their lands within the limits of Georgia,
' as soon as it could be done peaceably, and on reason-
ble terms.' The lands, moreover, were not to be taken
from the Indians without their consent, and the utmost
good faith was to be observed towards them. But the
Government, though having the means to extinguish
the Indian title, and bound to do it within a reason
able time, failed to do so. In 1817, it is true, one-half
of the tribe were induced to remove ; but it is believed
that the whole nation might, at that time, have been
persuaded to leave, had the Government used the ap
propriate means. Instead, however, of this being done.

' Peters' Reports, vol. v., pp. 1-80,
Vol, IL — 30

466 LIFE OF JOHN MARSHALL.
the policy of the Government tended directly to make
the Indians permanent residents of the soil. They
were encouraged to become civilized, and, under the
influence of this encouragement, were happily be
coming so. Cultivated farms, schools, and churches,
were seen among them; — admirable instruments for
their elevation, but calculated to attach them more
strongly to the soil, and render them averse to remo
val. Georgia complained that the policy of the Gov
ernment in thus civilizing the Indians, however bene-
cial to them, was inconsistent with the obligations it
owed to her. And we cannot help thinking that there
was force in this complaint.
In 1824, the Indians took a step which indicated
very clearly that they never intended to leave their
territory in Georgia for the wdld hunting-grounds be
yond the Mississippi. They formed and adopted a
constitution for a permanent government. Great ex
citement thereupon ensued throughout Georgia, and
the Legislature passed a series of laws which went
directly to annihilate the Cherokees as a political
society, and to seize their lands for the use of the
State ; lands which the United States had assured to
them by the most solemn treaties. All this was fla
grantly unjust to the Indians, who were innocent of
any offence to Georgia, and were entitled, if they de
sired it, to hold their lands forever, and be governed
by their own laws and regulations, as a distinct com
munity. But, on applying to the Administration of
General Jackson for aid in their troubles, they were
told that the Government would not interfere. They
then employed counsel, and a bill was brought before
the Supreme Court, praying an injunction to restrain
the State from the execution of the obnoxious laws.
The State paid no attention to the proceeding, was not

CHIEF JUSTICE OF UNITED STATES. 467
represented at the hearing, and did not intend to
respect an adverse decision. The argument on behalf
of the Cherokees was conducted with uncommon abiUty
and eloquence by Mr, Wirt, and John Sergeant of
Philadelphia. The Court held, however, that they had
no jurisdiction of the case.
Marshall, Ghief Justice. 'If courts* were permitted
to indulge their sympathies, a case better calculated to
excite them can scarcely be imagined. A people once
numerous, powerful, and truly independent,' found by
our ancestors in the quiet and uncontrolled possession
of an ample domain, graduaUy sinking beneath our
superior policy, our arts, and our arms, have yielded
their lands by successive treaties, each of which con
tains a solemn guarantee of the residue, until they re
tain no more of their former extensive territory than
is deemed necessary to their comfortable subsistence.
To preserve this remnant, the present application is
made.' ' Has this Court jurisdiction of the cause ? The
third article of the Constitution describes the extent
of the judicial power. The second section closes an
enumeration of the cases to which it is extended, with
"controversies" "between a State, or the citizens
thereof, and foreign States, citizens, or subjects." A
subsequent clause of the same section gives the Su
preme Court original jurisdiction in all cases in which
a State shall be a party. The party defendant may,
then, unquestionably, be sued in this Court. May the
plaintiff sue in it ? Is the Cherokee nation a foreign
State in the sense in which that term is used in the
Constitution ?'
' Though the Indians are acknowledged to have an
unquestionable, and heretofore unquestioned, right to

468 LIFE OF JOHN MARSHALL.
the lands they occupy, until that right shall be ex
tinguished by a voluntary cession to our Government;
yet it may well be doubted whether those tribes which
reside within the acknowledged boundaries of the
United States can, with strict accuracy, be denomi
nated foreign nations. They may, more correctly,
perhaps, be denominated domestic dependent nations.'
'They and their country are considered by foreign
nations, as well as by ourselves, as being so completely
under the sovereignty and dominion of the United
States, that any attempt to acquire their lands, or to
form a political connection with them, would be con
sidered by all as an invasion of our territory, and
an act of hostility.' ' The Court has bestowed its
best attention on this question, and, after mature
deliberation, the majority is of opinion that an Indian
tribe or nation is not a foreign State in the sense of
the Constitution, and cannot maintain an action in
the Courts of the United States.'
One of the laws of Georgia relating to the Chero
kees, prohibited any white person from residing within
the limits of the Indian territory without a license
from the Governor, and without taking an oath to
support and defend the Constitution and laws of the
State. This law w^as aimed at the missionaries residing
among the Indians, and who were supposed to be in
imical to the policy of Georgia with regard to them.
Samuel A. Worcester, a citizen of Vermont, was one
of these missionaries. He had been sent out in that
capacity by the American Board of Foreign Missions,
and with the sanction of the President of the United
States. Refusing to comply with the law of Georgia,
he and six others, who occupied the same position with
himself, were arrested, tried, and convicted for its

CHIEF JUSTICE OF UNITED STATES. 469
Violation, and each sentenced to four years' imprison
ment at hard labor in the penitentiary. A pardon was
then offered them on condition that, in the future, they
would conform to the policy of the State. Five of the
missionaries accepted the pardon ; but Worcester, and
another, the Rev. Elizur Butler, refused it. The inter
position of the Supreme Court was now invoked in
their behalf, and their cause was argued by the same
counsel who had appeared for the Indians. The Court
held that the law under which they were convicted
was void, as being repugnant to the Constitution,
laws, and treaties of the United States, and that the
judgment of the Georgia Court ought to be reversed
and annulled.
MarshaU, Ghief Justice. 'The treaties and laws of
the United States contemplate the Indian territory as
completely separated from that of the States; and pro
vide that all intercourse with them shall be carried on
exclusively by the Government of the Union.' ' The
Cherokee nation, then, is a distinct community, occu
pying its own territory, with boundaries accurately
described, in which the laws of Georgia can have no
force, and which the citizens of Georgia have no right
to enter, but with the assent of the Cherokees them
selves, 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 laAvs, vested in the Government of 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,''
' Worcester v. Georgia, Peters' Reports, vol. vi., pp. 515-597,
The Georgia authorities paid no attention to this decision of the

470 LIFE OF JOHN MARSHALL,
The judicial opinions of the Chief Justice which we
have cited in the preceding pages will give the general
reader an idea of his style and mode of reasoning. The
march of his mind was in a direct line. He proceeded
straight onward to his conclusions. He did not en
cumber himself, nor embarrass others with a mass of
authorities. Discerning, as if by intuition, the prin
ciple upon which the decision must depend, he did
not look far for cases either to illustrate or support it.
Witness his judgment in the Dartmouth College case.
In truth, however, on questions of constitutional law,
there were no precedents to guide him. He was neces
sarily obliged to rely on the native strength of his
mind ; and it is here that his unrivalled penetration,
his powers of analysis and combination, are most con
spicuously displayed. In the decisions of what other
jurist do we find such simple, connected, compacted,
demonstrative reasoning ? In acquisitions, in various
legal knowledge, he has been surpassed by others; but
for grasp of intellect, and profoundness of judgment,
where shall we look for his equal? He was less de
pendent on mere learning than others ; for, so distin
guishing were his faculties, and so exquisite his pene
tration, that he unfolded the original principles which
lie at the very foundations of the law. By the clear
light of his reason he could
'  sit in the centre and enjoy bright day.'
He had the 'liberal heart' and 'judging eye,' the
clear head, and sound, good sense that insure wisdom
of decision. By strict adherence to recognised autho-
Supreme Court, kept the missionaries in the penitentiary a year and
a half under the judgment which that Court had declared utterly
void, and only released them, at last, when the State had accom
plished its objects with regard to the Indians.

CHIEF JUSTICE OF UNITED STATES. 471
rities, an indu.strious- and conscientious, though infe
rior man, may make a good judge; he will not be
likely to go very far wrong, or give much occasion for
complaint. But when ' a new and troubled scene is
opened, and the file affords no precedent,' then medi
ocrity is placed in a situation of infinite difficulty, and
may do infinite mischief Precisely in such a situa
tion did the extraordinary abilities of MarshaU find
their most fitting theatre for display. Then was seen
with what ease he could disentangle the complicated
web which had vainly taxed the skill of others ; with
what rare facility he could 'penetrate, resolve, com
bine,' and with what an irradiating spirit he advanced
to his conclusions.
' Enter but that hall,' says Judge Story, ' and you
saw him listening with a quiet, easy dignity to the dis
cussions at the Bar ; silent, serious, searching ; with a
keenness of thought v/hich sophistry could not mislead,
or error confuse, or ingenuity delude; wdth a benignity
of aspect which invited the modest to move on with
confidence; with a conscious firmness of purpose which^
repressed arrogance, and overawed declamation. You
heard him pronounce the opinion of the Court in a low,
but modulated voice, unfolding in luminous order
every topic of argument, trying its strength, and mea
suring its value, untU you felt yourself in the presence
of the very oracle of the law.' '
In forming his opinions, he depended more upon
general principles than cases, though he yielded all
proper respect to authority. ' He seized,' says Judge
Story, 'as it were by intuition, the very spirit of juri-
' Story's Discourse, p. 68.

472 LIFE OF JOHN MARSHALL.
dical doctrines, though cased up in the armor of cen
turies; and he discussed authorities, as if the very
minds of the judges themselves stood disembodied be
fore him.' '
No judge, perhaps, was ever regarded with more
veneration and affection than Chief Justice Marshall.
The Bar and the country appreciated, and with pride
and pleasure did homage to his extraordinary merits.
In the discharge of his high duties there was so much
gentleness, modesty, and simplicity, united with such
depth and compass of mind, that the profession loved
him quite as much as they admired and respected him.
His demeanor on the Bench was a model of judicial
dignity and courtesy. Whether the counsel was emi
nent, or comparatively little known, he listened with
the same attention, patience, and respect. ' He was
endowed by nature,' says Mr. Binney, 'with a patience
that 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.'^ An illustration
of this latter remark may be found in the following
anecdote, as related by Judge Story, He used to tell
with glee, that Chief Justice Marshall, on one occa-
' Story's Discourse, p. 70. The criticism of Lord Stowell, however,
was hardly applicable to him. 'I rather think,' says that renowned
magistrate, 'we are too fond of cases; when a matter is to be argued,
we look immediately for the cases, and by them we are determined
more than, perhaps, by the real justice that belongs to the question;
this may enforce the uniformity of the law, which is certainly a very
desirable purpose, but is by no means the first purpose that ought to
be considered ; for, if the judgment be erroneous, it is but an indif
ferent exposition of the law.' Story's Life and Letters, vol. i., p. 554,
May 17th, 1828.
* Eulogy on John Marshall, p. 58,

CHIEF JUSTICE OF UNITED STATES, 473
Sion, when a very pompous and tedious advocate was
arguing a case before the Supreme Court, and going
back to the undisputed and preadamite rules of the
law, interrupted the course of his argument by say
ing: — 'Mr. C  , I think this is unnecessary. There
are some things which a Court constituted as this is
may be presumed to know.''
The Supreme Court, in his day, was an object of
great attraction, and he the most interesting figure
of the scene. ' At some moments,' says Miss Marti-
neau, who was at Washington in the winter of 1835,
' this Court presents a singular spectacle. I have
watched the assemblage while the Chief Justice was
delivering a judgment; — 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 instantly 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 mo
ment unopened in his hand, his small, gray eye and
placid half-smile conveying an expression of pleasure,
wdiich 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, bis 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

Story's Life and Letters, vol. ii., p. 596.
Benjamin F. Butler.

474 LIFE OF JOHN MARSHALL.
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 have
I seen at one moment constitute one silent assemblage,
while the mild voice of the aged Chief Justice sounded
through the Court.' '
Having now contemplated Chief Justice Marshall
as a magistrate, we shall proceed to trace his footsteps
in other scenes of labor and public service.
' Martineau's Western Travel, vol. i., p. 275, English ed.

HIS BIOGRAPHY OF WASHINGTON. 475

CHAPTER XII.
1800-1806.
HIS BIOGRAPHY OF WASHINGTON.
General Washington, as is well known, be
queathed all his valuable public and private papers to
his favorite nephew, Mr. Justice Washington. When
this circumstance came to the knowledge of the public,
a Life of that eminent person, prepared from materials
so copious and authentic, was eagerly anticipated. The
publishers, too, foreseeing a large demand for such a
work, early applied to Judge Washington to purchase
the copy-right. In reply to a letter of this kind from
Mr. Caleb P. Wayne, at that time editor and proprietor
of the United States Gazette, he says: — 'With Gene
ral Marshall, who is to write the history, I consulted,
when I saw him in February last, respecting the pro
position which you and others had made to purchase
the copyright, with a view to making some estimate
of its value ; but being ignorant of such matters, we
were unable to form even an opinion on the subject,
particularly at this early stage of the work. We shall,
therefore, decUne any negotiation upon the subject for
the present, but will keep in remembrance your two
propositions, and wiU write you again when the work
is more advanced."
' MS., April 11th, 1800. Washington died December 14th, 1799.

476 LIFE OF JOHN MARSHALL.
The agreement between Judge Washington and the
Chief Justice seems to have been a very equitable
one ; the former was to furnish the papers, and the
latter to prepare the biography, and the amount ob
tained for the copyright was to be divided equally be
tween them. What estimate they placed upon this
will be seen from the following, extract of a letter
written by Judge Washington to Wayne, at a time
when the advanced condition of the work enabled
them to form an opinion upon the subject : —
' Great exertions,' thus he writes, ' will be made to
finish it in the course of the next year; and we are
not without hopes of success, if the present order of
the Courts be not disturbed, or very materially changed.
At any rate, many of the volumes will be ready in
that time, and may be put to press. . . . We have
endeavored to form some estimate of the value of this
work, with a view to a reasonable price at which to
dispose of it. We suppose that less than a dollar a
volume cannot be thought of; and, upon the calcula
tion of thirty thousand subscribers in America, this
would amount to $150,000, supposing there to be five
volumes. This, that is, a dollar a volume, would con
tent us, whilst it would leave a very large profit to the
purchaser, and a still larger profit should he be also
the printer. But the subscriptions may exceed or fall
short of the number mentioned, and, to escape the
trouble of that part of the business, w^e will consent to
receive $100,000 for the copyright in the United
States ; less than this sum we will not take 
Should you wish to purchase the entire right to this
work, to dispose of in Europe as well as in the United
States, you will say so; and, knowing the grounds
upon which we calculate the value in the United

HIS BIOGRAPHY OF WASHINGTON. 477
States, I could wish you to make an offer for the
whole. We have received propositions for the pur-
chasaof the right to sell in Great Britain, upon which
we have not yet decided.' '
In a subsequent letter to Wayne, he says : — 'To
your ideas upon this subject I have given the fullest
consideration ; and I cannot help thinking that, how
ever I may have exceeded or fallen short of the pre
cise value of the work in question, the grounds
of calculation which you assume must be erroneous.
In asking for the author one dollar per volume, I
think it impossible that I can be charged with de
manding too much. The profit which this will leave
to the printer and purchaser of the copyright is im
mense, and I choose it should be so. If I miscalculated
then, in anything, it was in overrating the number of
subscribers to be obtained in this country. I certainly
believe that I was not very inaccurate as to this part
of the subject. ... As to the number you speak of, I
can have no doubt but that it could be obtained in
either of the four large towns in the United States.'
' Upon the whole, although I sincerely think that the
sum mentioned in my former letter is a moderate esti
mate of the value of the American copyright, yet I
acknowledge myself very little acquainted with the
subject, and as apt as other men to be deceived. If
you prefer a total abandonment of this right for a gross
sum, and wUl state the highest sum which you think
it prudent to offer, I will consider it, and give you both
a speedy and candid answer. After having disclosed
the ground upon which I made my calculation, and
assured you of the sincerity with which it was made,
' MS., December 11th, 1801.

478 LIFE OF JOHN MARSHALL.
I should be at a loss for some principle upon which to
name a smaller sum. Your superior information upon
subjects of this kind may suggest reasons not per
ceived by me at this time. My wish is, that the pur
chaser may be not only safe, but liberally rewarded for
the trouble he must encounter.' '
Soon after receiving this letter, Wayne made Judge
Washington a visit at his place in Virginia, and, while
there, agreed to buy the American copyright for
seventy thousand dollars, provided he could furnish
satisfactory security for the payment of the money.
But his friends were unwilling to become liable for so
large an amount, though ready to be bound for any
sum which h5 might actually receive. In the latter
case, as he wrote the Judge, ' the security would be
for my integrity, and nothing would be involved in the
success of the work,' ^ He therefore proposed, in place
of a gross sum, to pay one dollar a volume for each copy
of the work subscribed for, and to encounter all the
trouble and expense of obtaining subscribers. After
consulting with Judge Marshall upon the subject,
Judge Washington, though still preferring a gross
sum, acceded to Wayne's proposal, ' We cannot gra
tify the desire we feel to conform to your situation,'
thus he writes, ' without yielding that point, and we
shall do so, A prospectus will be prepared and for
warded shortly, for I agree with you that the sooner
you set on foot the subscription the better,'^
' MS., Washington to Wayne, January 22d, 1802.
" MS., Wayne to Washington, March 17th, 1802.
' MS., May 9th, 1802. The contract was executed September
22d, 1802. 'The said Wayne,' so it was expressed, 'agrees to pay
to the said Washington, his executors, administrators, and assigns,
one dollar for every volume of the aforesaid work which may be sub-

HIS BIOGRAPHY OF WASHINGTON. 479
Although MarshaU had not been announced as the
author of the proposed Life of Washington, yet the
fact soon became generally known, and awakened no
little jealousy and apprehension on the part of the Re
publicans. His politics were so decided, that it was
assumed that he would give a party bias to the work.
Two years before the first volume was published, Jef
ferson, with his usual facility in stating conjectures as
facts, thus wrote his friend Joel Barlow, the author of
the Columbiad, who was then residing at Paris : 
' Mr. Madison and myself,' he says, ' have cut out a
piece of work for you, which is, to write the history
of the United States, from the close of the war down
wards. We are rich ourselves in materials, and can
open all the pubUc archives to you; but your resi
dence here is essential, because a great deal of the
knowledge of things is not on paper, but only within
ourselves, for verbal communication. John Marshall
is writing the Life of General Washington from his
papers. It is intended to come out just in time to in
fluence the next Presidential election. It is written,
therefore, principally with a view to electioneering
purposes. But it will, consequently, be out in time to
aid you with information, as well as to point out the
perversions of truth necessary to be rectified. Think
of this, and agree to it.' '
The assertions thus hazarded by Jefferson as to the
character and designs of the work were totally un
founded. ' The Democrats may say what they please,'
wrote Judge Washington, ' and I have expected they
scribed for, or which may be sold and paid for at any time during the
continuance of the copyright.'
' Jefferson's Works, vol. iv., p. 437. May 3d, 1802.

480 LIFE OF JOHN MARSHALL.
would say a great deal ; but this is, at least, not in
tended to be a party work, nor will any candid man
have cause to make this charge.' ^ The contrary impres
sion, nevertheless, had an unfavorable influence in the
canvass for subscribers. Weems, wdio had been rector of
Mount Vernon parish, was one of the soliciting agents
for the work. In a letter to the publisher from Bal
timore, he says: — 'The people are very fearful that
it will be prostituted to party purposes. I mean, of
course, the Life of Washington. For Heaven's sake,
drop now and then a cautionary hint to John Mar
shall, Esq.'^ This sort of impression respecting the
' MS., Washington to Wayne, November 19th, 1802.
' MS., Blason L. Weems to C. P. Wayne, December 14th, 1802.
As a book agent, Weems displayed unrivalled tact and activity. The
following extract from one of his letters to Wayne, dated Annapolis,
Md., December 22d, 1802, will show his mode of procedure. On his
arrival there he found the Legislature in session. ' I instantly deter
mined,' he says, ' the House still in session, to congregate them.
Next morning I threw in a note to the Chair, soliciting the honor of
uttering before them a, patriotic oration. They came together. They
were pleased, and have begun to subscribe.' ' Patriotic orations !
Gazette puffs ! Washingtonian anecdotes ! sentimental, moral, mili
tary, and wonderful ! — all should be tried, and every exertion made
to push into every family, into every hand, so very interesting and
highly moralizing a work as yours ; but, alas ! I am not able to do it
on my present allowance.' It was on this idea of creating a sensa
tion that Weoma wrote his Lives of Washington, Marion, Franklin,
and Penn ; and the extraordinary success of those books shows that
he possessed a profitable knowledge of human nature.
In a letter to Wayne from Frederick, Md., April 8th, 1803, he
says : — ' Give old Washington fair play, and all will be well. I
mean, let but the interior of the work be liberal, and the exterior
elegant, and a town house and a country house, a coach, and sideboard
of massy plate, shall all be thine. I sicken when I think how much
may be niarr'd. . . . God ! I pray him, grant this work may bring
moral blessings on our country, and honor and wealth on C. P. W.
and M. L. W.

HIS BIOGRAPHY OF WASHINGTON. 481
work, coupled with the more serious objection to its
cost, soon proved the fallaciousness of the expectations
that had been entertained with regard to the demand
for it. Instead of thirty thousand subscribers, as Judge
Washington had anticipated, the number actually ob
tained fell short of eight thousand.
Owing to the pressure of his judicial duties, and the
time and labor required to examine many trunks of
papers, Marshall was unable to hasten the work as
rapidly as the impatience of the subscribers demanded.
They clamored loudly at the delay, but it was un
avoidable. It was not until the winter of 1803-4, that
the first volume was placed in the hands of the printer.
It was Marshall's intention that his name should not
appear as the author of the work ; and he only yielded
the point to the wishes of others.
Unless there be some law,' thus he wrote his son,
'which I have not seen, the Clerk of the District
Court, in my opinion, transcends his duty, and re
quires more than the act of Congress requires, when
he demands the name of the author. If he persists in
the demand, I wish Mr. Wayne to inform me of it, and
I will then consult with Mr. Washington on the course
to be pursued. But I wish Mr. Wayne, when be re
ceives the title-page, which was sent some time since
with the prefice to Mr. Washington, to present it to
the Clerk, and to call his attention to the law. I do
not wish to give in my name as the author, and will
only do so if it be unavoidable. The book is expressed
to be written under the inspection of Judge Washing
ton, and that, in my opinion, is more than sufficient.
' I wish Mr. Wayne to write freely to me on this
subject, and to suggest, without difficulty, anything
which occurs to him. I am not among those who feel
Vol. il — 31

-182 LIFE OF JOHN MARSHALL.
wounded at a criticism on my writings, and in the pre
sent instance, at least, would much rather it should be
directly made, than felt and suppressed. I am much
inclined to believe that the first part of the work is too
minute in its details, and have often regretted that I
did not abridge it."
In a subsequent letter to Wayne he says : — ' My
repugnance to permitting my name to appear in the
title stUl continues ; but it shall yield to your right to
make the best use you can of the copy. I do not my
self imagine that the name of the author being given
or withheld can produce any difference in the number
of subscribers ; but if you think differently, I should
be very unwilling, by a pertinacious adherence to
what may be deemed a mere prejudice, to leave you
in the opinion that a real injury has been sustained.
I have written to Mr. Washington on this subject, and
shall submit my scruples to 3'Ou and him, only request
ing that my name may not be given but on mature
consideration and conviction of its propriety. If this
shall be ultimately resolved on, I wish not my title in
the Judiciary of the United States to be annexed to
it. Mr. Washington will probably write to you ; but
I have requested that no decision be made, unless it
shall be necessary, till I see him, which will be at
Washington, early in February.' ^
The question thus referred to Judge Washington
was promptly decided. ' The Chief Justice,' he says,
in a letter to Wayne, ' with great reluctance consents

' MS., December 23d, 1803. Letter to Thomas Marshall. Young
Marshall, at this time, waa in college at Princeton ; but, at the date
of his father's letter, staying for a few days in Philadelphia.
' MS., Marshall to C. P. Wayne, January 10th, 1804.

HIS BIOGRAPHY OF WASHINGTON, 483
that his name as author may be inserted in the title-
page, provided I insist upon it. It gives me pain to
decide against his wishes; but I really think it neces
sary, for many reasons. He requests, however, that
his name may be modestly introduced, without any
addition of the title he bears as a member of the Judi
ciary, It wUl, I presume, be sufficient to say, "By
John Marshall." He is of opinion that there is no
necessity for inserting the number of volumes in the
title-page, and in this I concur with him. It would be
very embarrassing in this instance if it were other
wise, for it is next to impossible, at this time, to say
whether there wUl be four or five volumes.' '
That innate modesty which pervaded Marshall's
character, and diffused itself through all his actions,
is very conspicuous in the letters addressed to his
publisher during the progress of his work. 'If Mr,
Short is in Philadelphia,' thus he wrote Wayne,
' present, with my compliments, my thanks for the
aid he has been so good as to give you, and tell
him the obligation would have been much greater,
if he would more freely have corrected the inaccu
racies which must have presented themselves to
him as well as you, / Indeed, my dear Sir, I am per
suaded that I have reason to complain of you. I
feared that you would not censure and alter freely,
and, therefore, particularly requested that you would
do so. I do not think you can have complied with my
wishes. You mistake me very much, if you think I
rank the corrections of a friend with the bitter sar
casms of a foe, or that I should feel either wounded or
chagrined at my inattentions and inaccuracies being
pointed out by another. I know there are many and
' MS., "January 24th, 1804.

484 LIFE OF JOHN MARSHALL.
great defects in the composition — defects which I
shall lament sincerely, and feel sensibly, when I shall
see the work in print. The hurried manner in which
it is pressed forward renders this inevitable.' '
Owing to his other engagements, and the urgency
of the publisher for the manuscript, he was unable to
give the work that thorough revision and retrench
ment which were required ; and, from another cause,
was prevented from even correcting the proof-sheets.
' Although I ought to have known,' he says, ' that I
was too far from Philadelphia to inspect the proof-
sheets, I had still unaccountably considered the cor
rections I had made as to find a place in the first im
pression, and am not a little mortified to discover my
mistake. There are, however, some very few inaccu
racies which you will readily perceive ought to be
mentioned in the errata. These are, where some word
is obviously omitted, or has been mistaken for another.
... I regret your determination to print a second
edition immediately. I have not time to correct the
first at present, nor can I have time till the w^ork
shall be completed. The employment of finishing the
fourth volume, and of superintending the copying,
added to my various other avocations, absolutely dis
able me from giving the sheets you send me such a
reading as I can be satisfied with. The third volume
has been, for some time, in Mr, Washington's hands,
and I should hope has been forwarded to you before
this time, . , , If you make an additional impression,
I hope it will be a very small one, and I cannot con
sent to its being stated to be revised and corrected by
the author. It would, perhaps, be as well to make the

MS., April, 1804.

HIS BIOGRAPHY OF WASHINGTON. 485
amendments which I have suggested, and to add to
the number of the first edition so much as there may
be an absolute demand for. I am anxious, before the
books shall be very much multiplied, to give them a
very serious reading at perfect leisure, and prepare
them for a second edition. There are really errors in
the present publication which manifest a greater de
gree of carelessness than I had suspected when I had
only seen the manuscript.'
' My state of health requires that I should pass the
residue of the summer in the mountain country. As
I cannot take the papers with me to prosecute the
work, I had proposed to retain the first volume, and
to read it whUe in the country. Perhaps the transmis
sion of the third to you will enable you to leave the
first with me. I wish to know your situation in this
respect.' '
The following letter was written after the first
volume of the work had been published : —
' Sir : — I have received your letter with part of the
sheets of the second volume, and your resolution to
postpone the second edition of the first. I am just
setting out for the upper country, where I shall give
the first volume one considerate reading, and then for
ward it to you by the post. You will please to direct
to me at Front Royal, Frederick County, Virginia. . . ,
I have no doubt that the errors noticed are princi
pally, if not entirely, in the manuscript. Some very
few, I believe, are not; but they are very few. I am
confident of the care you have bestowed on the siib-
ject, and wish every other person could have performed
' MS. Letter to Wayne, July 4th, 1804.

486 LIFE OF JOHN MARSHALL.
his part wdth as much attention and exactness as you
have done. I thank you for the two papers you sent
me. I take the Gazette of the United States, and
shall, of course, see anything which may appear in
that paper. The very handsome critique in the Politi
cal and Commercial Register was new to me. I could
only regret that there was in it more of panegyric than
was merited. The editor of that paper, if the author
of the critique, manifests himself to be master of a
style of a very superior order, and to be, of course, a
very correct judge of the compositions of others.
' Having, Heaven knows how reluctantly, consented
against my judgment to be known as the author of
the work in question, I cannot be insensible to the
opinions entertained of it; but I am much more
solicitous to hear the strictures upon it, than to know
what parts may be thought exempt from censure. As
I am about to give a reading to the first volume, and
as not much time can be employed upon it, the stric
tures of those who are either friendly or hostile to the
work may be useful, if communicated to me, because
they may direct my attention to defects which might
otherwise escape a single reading, however careful that
reading may be. I will, therefore, thank you to con
vey to me at Front Royal every condemnatory criti
cism which may reach you. It would be impossible,
and I shall not attempt to polish every sentence. That
would require repeated readings, and a long course of
time ; but I wish to correct obvious imperfections, and
the animadversions of others would aid me very much
in doing so.'^
In reply to this letter Wayne thus writes: — 'Every
' MS., Marshall to Wayne, July 20th, 1804.

HIS BIOGRAPHY OF WASHINGTON. 487
review of the work which I can lay my hand on shall
be forwarded to you. The editor of the Commercial
and Political Register is William Jackson, Esq., for
merly, I believe, an aid to General Washington, and
recently dismissed from a situation in the custom
house. He bears the title of Major, You will pardon
me for mentioning what I have heard spoken of as a
fault in the work ; it is where the enemy is spoken of
It has been suggested that an author ought not to
write as an American, but assume an independent
ground, 1 understand the volume will be reviewed
in a magazine published here, I shall send it."
' I have the pleasure of being acquainted with
Major Jackson,' says Marshall in answer to the above,
' and have a high opinion of his taste and judgment,
I heard him deliver a very excellent oration on the
death of General Washington — one of the best which
that melancholy occasion produced. You need make
no apology for mentioning to me the criticism on the
word " enemy," I am glad you have done so, I will
endeavor to avoid it where it can be avoided. It has,
probably, been used improperly, and unnecessarily, but
may, I think, be occasionally employed without cen
sure, A historian, it is true, is of no nation, but the
person whose history he writes is ; and the word is
used to denote, not the enemy of the author, but of
the person or army whose actions the historian is
relating, I wish, however, if it can be done, that the
third volume may be corrected in this respect, when,
Avithout repetition, the term may be changed. For
the first and second the correction can only be made
for the second edition.

MS., Wayne to Marshall, July 25th, 1804,

488 LIFE OF JOHN MARSHALL,
' I am just finishing a review of the first volume, and
am mortified beyond measure to find that it has been
so carelessly written. Its inelegancies are more nume
rous than I had supposed could have appeared in it. I
have thought it necessary to reconstruct very many of
the sentences, and am sorry to impose on you the task
of changing your types so materially. I hope you have
not printed a greater number of the second volume
than you have of the first, and that you will not print
a greater number of the third. I lament that the first
edition is so large as you have made it. ... I have
directed my son to make a present to the Whig Society
in Princeton of a copy of the work. I could wish it to
be of the second edition.' '
The criticism of Major Jackson's upon the first
volume bestows merited praise upon the author, and
more reservedly, perhaps, applause upon his work.
' The first volume of the Life of Washington,' he
says, ' has now been some time before the public. The
author of this work, Mr, Marshall, has every claim to
stand in the foremost rank of our distinguished men.
To the merit which belongs to professional exaltation
he has added that of an able ambassador, and an elo
quent legislator. Passing from these characters, he
' MS. Letter to Wayne, August 10th, 1804. In the following year
he requests Wayne to send a copy of the work, so far as completed,
to his friend, the late President of the United States. ' I will thank
you,' he writes, ' to take some opportunity of sending three volumes
to Mr. Adams, with the following words written on a blank leaf in
each : — " Mr. Adams is requested to accept a copy of the Life of
Washington, as a small mark of the respect and attachment of his
obliged and obedient servant, ' "The Author."
' "June 7th, 1805.

HIS BIOGRAPHY OF WASHINGTON. 489
now fills, with acknowledged abiUty, the office of first
judicial magistrate of our nation. If he succeeds as an
author and historian, it can only be from that variety
of excellence which belongs to minds of the highest
order. . . . Seldom, if ever, has any book gone into
the world under the circumstances which mark the
appearance of Mr. Marshall's. He cannot be entirely
regarded as the voluntary author of it. The Abbe Bar-
thelimie spent thirty years in writing the travels of
Anacharsis ; and the historian of The Decline and
Fall of the Roman Empire employed the labor of a life
upon his work. But the biographer of the Life of
Washington tells us, "that the public were already
looking for his work before the writer was fixed on,
or the documents from which it was to be composed,
placed in his hands." Since the writer was fixed on,
and the materials furnished, not three years have
elapsed, and four octavo volumes are prepared for the
press. It must be added, that, during this very short
period, the labors of the author have been mixed with
a regular attention to the duties of an office of the
highest importance and difficulty.
' Under this great disadvantage has the first volume
of the Life of Washington been placed in our hands,
and yet we hope there wUl not be that disappointment
the author has anticipated. Whoever expects to see,
in a work thus rapidly written, every sentence highly
polished, who looks in every page for the splendid
ornament of Gibbon, or the continued elegance of
Hume, may not have his expectations answered; but
it has, nevertheless, conspicuous merit. The style is
chaste, energetic, and elevated. A narrative interest
ing, because it is our own history, but deficient in
striking incident, is conducted. with ease and perspi
cuity, and every proof afforded of a mind vigorous.

490 LIFE OF JOHN MARSHALL.
comprehensive, and discriminating. We highly ap
plaud Mr. Marshall's plan of presenting, under one
view, the history of the first settlement and early pro
gress of the different colonies. It is a proper introduc
tion to his work, and forms a valuable accession to
American literature. In the latter part of the volume,
where events of a higher interest are described than
those on wdiich the earlier pages of it are occupied, we
mark in Mr." Marshall's style a corresponding eleva
tion.' '
Major Jackson's criticism, unhappily, did not speak
the public voice. The first volume of the work occa
sioned general disappointment. Neither in matter nor
manner did it meet the public expectations. It con
tained nothing new^, and the style was not more
attractive than the annals and histories from which it
was compiled. The critics exposed its infelicities of
expression, and everybody pronounced it dull. It cer
tainly, for a time, detracted from Marshall's reputa
tion for ability. Nevertheless, there are passages in
that volume which indicate talents for historical compo
sition, of no common order. His portraiture of Pitt
may be cited as an example : —
' Mr. Pitt,' he says, ' had long b^en distinguished in
the House of Commons for the boldness and splendor
of his eloquence. His parliamentary talents, and the
independent grandeur of his character, had given him
a vast ascendency in that body, and had made him the
idol of the nation. In 1756 he had been introduced
into the councils of his sovereign; but dissenting essen
tially from the system adopted for the prosecution of
' Political and Commercial Register, July 9th, 1804.

HIS BIOGRAPHY OF WASHINGTON. 491
the war, he retained his station for a very short time.
The public affection followed him out of office, and the
national disasters continuing, it was found impractica
ble to conduct the complicated machine of government
without his aid. In the summer of 1757, an Adminis
tration was formed so as to conciliate the great con
tending interests in Parliament, and Mr. Pitt was
placed at its head. The controlling superiority of his
character gave him, in the Cabinet, the same ascend
ency which he had obtained in the House of Commons,
and he seemed to dictate the measures of the nation.
But a very short time was necessary to show that, in
this extraordinary man, were combined qualities sel
dom united in the same person. His talents for action
seemed even to eclipse those he had displayed in de
bate ; and in directing the vast and complicated move
ments of a war, extending on both elements over every
quarter of the world, he unfolded a vigor of mind, a
clearness of judgment, and a decision of character, sur
passing the expectations even of those who had been
long accustomed to admire the firmness with which he
had pursued his political course. His plans, partaking
of the proud elevation of his own mind, and the exalted
opinion he entertained of his countrymen, were always
grand; and the means he employed for their execution
never failed to be adequate to the object. Possessing
without limitation the public confidence, he com
manded all the resources of the nation, and drew libe
rally from the public purse ; but the money was, at
aU times, faithfully and judiciously applied in the pub
lic service. Too great in his spirit, too sublime in his
views, to become the instrument of faction, when
placed at the head of the nation, he regarded only the
interest of the nation, and overlooking the country, or
the party which had given birth to merit, he searched

492 LIFE OF JOHN MARSHALL.
for merit only, and employed it wherever it could be
found. From the elevation of the house of Brunswick
to the British throne, a very considerable portion of
the people, under the denomination of tories, had been
degraded, persecuted, and oppressed. Superior to this
narrow and short-sighted policy, Mr. Pitt sought to
level these enfeebling and irritating distinctions, and
to engage every British subject in the cause of his
country. Thus, equally commanding the strength and
the wealth of the kingdom, with perhaps greater
talents, he possessed certainly greater means than any
of his predecessors.'^
Marshall felt very keenly the strictures of the press.
' I wish very sincerely,' he writes Wayne, ' that some
of those objections which are now made to the plan of
the work had been heard when the proposals for sub
scription were first published. I should very readily
have relinquished my opinion respecting it, if I had
perceived that the public taste required a different
course. I ought, indeed, to have foreseen that the
same impatience which precipitated the publication
would require that the life and transactions of Wash
ington should be immediately entered upon ; and, if
my original ideas of the subject bad been preserved in
the main, yet I ought to have departed from them, so
far as to have composed the introductory volume at
leisure, after the principal work was finished.
' I have also to sustain increased mortification on
account of the careless manner in which the work has
been executed. I had to learn that, under the pres
sure of constant application, the spring of the mind
loses its elasticity, and that the style will be insensibly
' Vol. i., p. 423, et seq.

HIS BIOGRAPHY OF WASHINGTON. 493
influenced by that of the authors we have been
perusing. That compositions thus formed require con
stant revisals when the impression under which they
were written has worn off. But regrets for the past
are unavaiUng. It is of more service to do what is
best under existing circumstances. There will be
great difficulty in retrieving the reputation of the first
volume, because there is a minuteness and a want of
interest in details of the transactions of infant settle
ments, which wiU always affect the book containing
them, however it may be executed. I have, therefore,
some doubts whether it may not be as well to drop the
first volume for the present, that is, not to speak of a
republication of it, and to proceed with the others. I
shall, at aU events, conform to your request, and be
silent respecting the corrections I have prepared.' '
On receiving a printed copy of the second volume,
the Chief Justice wrote the publisher as follows : —
' I have been critically examining the second volume
since my return, and am .sorry to find that, especially
in the first chapter, there is much to correct. The
third I hope will not be so defective, and it shall be
my care to render the fourth more fit for the public
eye. I wish it was possible for me to receive the
proof-sheets. But I suppose it is. not  Should
there be a second edition, the volumes will all be re
duced within the compass you propose, and will, of
course, receive very material corrections. On this sub
ject, however, I remain silent. Perhaps a free expres
sion of my thoughts respecting the inaccuracies of
the present edition may add to the current which
' MS. Letter to Wayne, September 3d, 1804.

494 LIFE OF JOHN MARSHALL,
seems to set against it, and may, therefore, be for the
present indiscreet, . . . The first edition should be
completely in possession of the public before a second
is spoken of.'*
The three first volumes of the work were published
in the course of the year 1804, the fourth in the en
suing year,^ and the fifth in 1807. This latter volume,
relating to Washington's administration of the Govern
ment, was a work of great labor.
'The unavoidable delays,' he says, 'the immense
researches among volumes of manuscripts, and chests
of letters and gazettes, which I am compelled to make,
will impede my progress so much, that it is absolutely
impossible to get the residue of the work completed in
the short time which remains to be devoted to it. I
regret this at least as much as you do, but cannot pre
vent it, I hope you will be able to employ yourself
profitably on some other work until the succeeding
volume shall be ready for you, which will be, I hope,
next spring, as I shall apply to it again the instant I
return from the Supreme Court, I flatter myself the
numbers of the first edition will not be multiplied. I
would not be understood to think humbly of it as re-
' MS., September 8th, 1804.
" ' I believe,' he writes, ' the fourth volume to be much less inac
curate than those which preceded it, as I have bestowed much more
attention on the style than was given to them. Yet I cannot flatter
myself that it will not need a considerable reform. I am confident
that I shall perceive, when I read it in print, many defects that escape
me in manuscript. I should, therefore, wish it were possible to see
the proof-sheets, or to correct a copy as I have done the three first,
before the additional number of copies shall be printed. But if this
would occasion you additional expense, I would not wish it.' MS.
Letter to Wayne, February 27th, 1805.

HIS BIOGR'APHY OF WASHINGTON, 495
Vised, I have not read more than one hundred pages
of the revised copy ; but I am persuaded that, had the
whole work come out originally in that form, it would
have been better received. Yet the revisal given to
the first impression was not only hasty, but pursued
so unremittingly, that many inaccuracies, and stiU
more inelegancies, must have escaped me. For the
sake of giving to the world a more careful correction
of the work, and for the sake of some essential altera
tions which I contemplate, I wish a second edition ;
and I am confident that every volume added to the
first must tend to prevent any demand for a second
edition.' '
The anxious wish of the Chief Justice, that there
should be a revised and improved edition of the Life
of Washington, was not gratified. A second edition of
the original work was never called for. Pie prepared,
' MS. Letter to Wayne, October 5th, 1805. At the date of this
letter, he was just recovering from a bilious fever. Two weeks later,
October 19th, 1805, he wrote as follows: — ' Immediately after writing
to you, my fever returned, and I am not yet recovered. My ill-health
is not more unwelcome on its own account, than on account of the
additional delays it will create in the business in which I am en
gaged. That these delays should affect you in any degree I sincerely
lament. They are occasioned by several accidents which concur, with
the nature of the work (which requires researches beyond measure
laborious), to protract the time of its completion. But you may be
assured that your interest is still more concerned in having time
taken to digest the materials properly, than in the celerity with which
they are thrown together. Bo this as it may, my health has com
pelled me to take refuge in the mountains from the sultry heats of our
climate ; and the continuing fever under which I have labored since
my return, and which is only stopped to-day, and still threatens me
with a visit, admonishes me that my return was premature, and has
prevented my deriving, from the time I counted on employing in this
important business, the benefits I expected.'

496 LIFE OF JOHN MARSHALL.
however, an abridged edition, which preserved all the
essential information of the larger work, without its
prolixity, and proved much more acceptable to the
public. It was published in two volumes, in 1831.'
He also prepared an edition of the latter for the use
of schools, which, however, did not make its appear
ance until after his death. The candor that pervades
these productions has been remarked as among their
characteristic excellences. Jefferson, it is true, took
exception to the note in the fifth volume of the origi
nal work, respecting his letter to Mazzei. That letter,
written in April, 1796, was published at Florence, and
afterwards at Paris, in the Moniteur. It attributed
monarchical designs to the leaders of the Federal
party, and asserted that they wished to introduce into
the United States the substance, as they had already
done the forms,^ of the British Government. The
editor of the Moniteur accompanied the letter with
very severe strictures on the conduct of the United
States, and it was supposed that our difficulties with
France were complicated in consequence of it. In a
letter to Martin Van Buren, in 1824, Jefferson, after
declaring that an entire paragraph had been interpo
lated into his letter to Mazzei, (and, as he surmised,
by the persons in power at Paris,) by which he was
made to charge his own country with ingratitude and
injustice to France, proceeds to say, '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.''
' The introductory part of the work had been previously published
as a distinct work, called the ' History of the Colonies.'
^ It was printed 'form' in the foreign papers; but Jefferson says
he wrote ' forms,' referring to the President's levees, birth-days, &c.
'^ Jefferson's Works, vol. vii., p. 366. It is curious that Jefferson,

HIS BIOGRAPHY OF WASHINGTON. 497
_ In the abridged edition of his work, the Chief Jus
tice replies to this charge of Mr. Jefferson, and vindi
cates himself with irresistible cogency.' This, we be
lieve, is the only instance in which he was called upon
to assert his candor and impartiality.
We have seen how unfavorable were the circum
stances under which the Life of Washington was writ
ten and submitted to the public eye. It, nevertheless,
possesses great and undeniable merit. It is full, im
partial, and accurate. It has always ranked as a
standard authority. It is, however, the work of a
jurist, and not of an artist. The style is something
jejune. It lacks spirit, picturesqueness, and warmth
of coloring. It has nothing of 'the long-resounding
march, and energy divine ;' nothing of the glow, the
ardentia verba, that distinguish the more celebrated
productions of Chief Justice Jay. At the same time,
as we have before remarked, the work evinces talents
for literary labor, which, with a more exclusive devo
tion to that object, would have joined to the praise of
solid merit the attractions of grace and elegance. His
delineation of the person and character of Washington
may serve as an illustration of this latter observation.
'General Washington,' he says, 'was rather above
the common size, his frame was robust, and his consti
tution vigorous, capable of enduring great fatigue, and
requiring a considerable degree of exercise for the pre
servation of his health. His exterior created in the
in a letter to Mr. Madison, just after the publication of the Mazzei
letter in this country, while giving very poliric reasons for not pub
licly noticing it, does not insinuate that the paragraph in question
was an interpolation ; but admits that the letter, in substance, was
his. Vide Letter to James Madison, August, 1797.
' His reply is contained in a note.
Vol. II. — 32

498 LIFE OF JOHN MARSHALL.
beholder the idea of strength united with manly grace
fulness. His manners were rather reserved than free,
though they partook nothing of that dryness and
sternness which accompany reserve when carried to
an extreme ; and, on all proper occasions, he could
relax sufficiently to show how highly he was gratified
by the charms of conversation, and the pleasures of
society. His person and whole deportment exhibited
an unaffected and indescribable dignity, unmingled
with haughtiness, of which all who approached him
were sensible ; and the attachment of those who pos
sessed his friendship, and enjoyed his intimacy, was
ardent, but always respectful. His temper was hu
mane, benevolent, and conciliatory; but there was a
quickness in his sensibility to anything apparently
offensive, which experience had taught him to watch
and to correct. . . . He made no pretensions to that
vivacity which fascinates, or to that wit which dazzles,
and frequently imposes on the understanding. More
solid than brilliant, judgment rather than genius con
stituted the most prominent feature of his character.
' As a military man, he was brave, enterprizing,
and cautious. That malignity which has sought to
strip him of all the higher qualities of a general, has
conceded to him personal courage, and a firmness of
resolution which neither dangers nor difficulties could
shake. But candor will allow him. other great and
valuable endowments. If his military course does not
abound with splendid achievements, it exhibits a series
of judicious measures, adapted to circumstances, which
probably saved his country. . . .
' No man has ever appeared upon the theatre of
public action, wdiose integrity was more incorruptible,
or whose principles were more perfectly free from the
contamination of those selfish and unworthy passions

HIS BIOGRAPHY OF WASHINGTON. 499
which find their nourishment in the conflicts of party.
Having no views which required concealment, his real
and avowed motives were the same ; and his whole
correspondence does not furnish a single case, from
which even an enemy would infer that he was capable,
under any circumstances, of stooping to the employ
ment of duplicity. No truth can be uttered with more
confidence, than that his ends were always upright,
and his means always pure. He exhibited the rare
example of a politician, to whom wiles were absolutely
unknown, and whose professions to foreign govern
ments, and to his own countrymen, were always sin
cere. In him was fully exemplified the real distinc
tion which forever exists between wisdom and cun
ning, and the importance as well as truth of the
maxim, that ' honesty is the best policy.'

500 LIFE OF JOHN MAESHALL.

CHAPTER XIIL
1829.
VIRGINIA STATE CONVENTION.
The original Constitution of Virginia was formed in
1776. It continued in existence for more than half a
century; but, at the session of the Virginia Legisla
ture, in 1827-8, the question was submitted to the
people of the State whether a convention should be
called to revise it. It was carried in the affirmative.
The subject was viewed throughout the State wdth
absorbing interest. A party, powerful in wealth,
talents, and social position, were invincibly opposed to
any important innovation in the fundamental law.
Another, and more numerous party, with champions
of acknowledged character and abilities, were, in some
essential particulars, for laying the axe at the root of
the tree. They would extend the right of suffrage,
readjust the basis of representation, reform the judi
ciary, and make other and important changes. The
discussion of these opposing sentiments produced great
excitement throughout Virginia. Both parties natu
rally selected their ablest advocates to represent them
in the Convention. The result was, that a body of
men were brought together, scarcely inferior to the re
nowned Convention of 1788.
Chief Justice Marshall was elected a member, as
were also the ex-Presidents Madison and Monroe. The

VIRGINIA STATE CONVENTION. 501
Convention assembled at the Capitol, in Richmond,
October 5th, 1829. A gentleman, who attended their
debates a fortnight, has given a very graphic descrip
tion of several of the more eminent members. ' Mr.
Madison,' he says, ' sat on the left of the Speaker, Mr.
Monroe on the right.' Mr. Madison spoke once for half
an hour ; but, although a pin might have been heard
to drop, so low was his tone, that from the gallery I
could distinguish only one word, and that was, " Con
stitution." He stood not more than six feet from the
Speaker. When he rose, a great part of the members
left their seats, and clustered around the aged states
man, thick as a swarm of bees. Mr. Madison was a
small man, of ample forehead, and some obliquity of
vision, (I thought the effect probably of age,) his eyes
appearing to be slightly introverted. His dress was
plain ; his overcoat a faded brown surtout. Mr. Mon
roe was very wrinkled and weather-beaten ; ungrace
ful in attitude and gesture, and his speeches only com
mon-place. Mr. Giles wore a crutch — was then Gov
ernor of the State. His style of delivery was perfectly
conversational — no gesture, no effort; but in ease,
fluency, and tact, surely he had not there his equal ;
his words were like honey pouring from an eastern
rock. ' Judge Marshall, whenever he spoke, which was sel
dom, and only for a short time, attracted great atten
tion. His appearance was revolutionary and patri
archal. Tall, in a long surtout of blue, with a face of
genius, and an eye of fire, his mind possessed the rare
faculty of condensation; he distilled an argument
down to its essence. There were two parties in the

' Mr. Monroe was chosen President of the Convention ; but, owing
to his indisposition, the chair was chiefly occupied by Mr. Powell and
P. P, Barbour.

502 LIFE OF JOHN MARSHALL.
House ; the Western, or radical, and the Eastern, or
conservative. Judge Marshall proposed something in
the nature of a compromise.
'John Randolph was remarkably deliberate, distinct,
and emphatic. He articulated excellently, and gave
the happiest effect to all he said. His person was frail
and uncommon; his face pale and withered; but his
eye radiant as a diamond. He owed, perhaps, more
to his manner than to his matter; and his mind was
rather. poetical than logical. Yet, in his own particu
lar vein, he was superior to any of his cotemporaries.
.Benjamin Watkins Leigh cut a distinguished figure in
the Convention, as the leader of the lowland party.
His diction is clear, correct, elegant, and might be
safely committed to print just as spoken. Yet, high as
he stands, he is not, perhaps, in the highest rank of
speakers. He never lightens, never thunders ; he can
charm, he can convince, but he can hardly overw^helin.
Mr. Tazewell I never saw up but. once, for a moment,
on a point of order; a tall, fine-looking man. P. P.
Barbour presided over the body with great dignity and
ease.' ' ,
The question which excited most feeUng, both in the
Convention and out of it ; the question which threat
ened to produce the most fatal, results, putting in
jeopardy the union and integrity of the State, related
to the basis of representation. The Western districts
contended for an equal representation of the free white
population ; the Eastern, or rather, as John Randolph
said, 'the great slave-holding and tobacco-planting dis
tricts,', would found representation upon a combination
' Howe's Virginia Historical Collections, page 313. This sketch
of the Convention was originally printed in a newspaper, under the
signature of C. C.

VIRGINIA STATE CONVENTION. 503
of persons and property. The debate upon this sub
ject was conducted with great ability and earnestness,
and extended through several weeks.
Much irritation prevailed, and great apprehensions
began to be entertained that the Convention would
separate without adopting any plan to allay the divi-
visions, and restore the tranquillity of the State. At
this portentous moment, however, several propositions
for a compromise were introduced. It was now that
the Chief Justice rose, and addressed the Convention.
His voice was feeble, and those who sat far off could
not hear him. Whenever, therefore, he spoke, ' the
members would press towards him, and strain, with
outstretched necks and eager ears, to catch his words.' '
His candor, and courtesy of manner, attracted and con
ciliated all parties.
' No person in the House,' said he, ' can be more
truly gratified than I am, at seeing the spirit that
has been manifested here to-day ; and it is my earnest
wish that this spirit of conciUation may be acted upon
in a fair, equal, and honest manner, adapted to the
situation of the different parts of the Commonwealth
which are to be affected. As to the general proposi
tions which have been offered, there is no essential dit-
ference between them. That the Federal numbers
and the plan of the white basis shall be blended toge
ther, so as to allow each an equal portion of power,
seems very generally agreed to. The difference is, that
one party applies these two principles separately, the
one to the Senate, the other to the House of Dele-
o'ates ; whUe the other party proposes to unite the two
principles, and to carry them in their blended foimi
' Southern Literary Messenger, vol. ii., p. 188.

to

504 LIFE OF JOHN MARSHALL.
through the whole Legislature. One gentleman differs
in the whole outline of his plan. He seems to imagine
that we claim nothing of republican principles, when
we claim a representation for property. Permit me to
set him right. I do not say that I hope to satisfy him,
or others, who say that republican government depends
on adopting the naked principle of numbers, that we
are right ; but I think I can satisfy him that we do
entertain a different opinion. I think the soundest
principles of republicanism do sanction some relation
between representation and taxation. Certainly no
opinion has received the sanction of wiser statesmen
and patriots. I think the two ought to be connected.
I think this was the principle of the Revolution; the
ground on which the colonies were torn from the
mother country, and made independent States.
' I shall not, however, go into that discussion now.
The House has already heard much said about it. I
would observe, that this basis of representation is a
matter so important to Virginia, that the subject was
reviewed by every thinking individual before this Con
vention assembled. Several different plans were con
templated. The basis of white population alone ; the
basis of free population alone ; a basis of population
alone ; a basis compounded of taxation and white
population (or, which is the same thing, a basis of
Federal numbers) ; two other bases were also proposed,
one referring to the total population of the State, the
other to taxation alone. Now, of these various propo
sitions, the basis of white population, and the basis of
taxation, alone are the two extremes. Between the
free population, and the white population, there is
almost no difference. Between the basis of total
population and the basis of taxation, there is but little
difference. The people of the East thought that they

VIRGINIA STATE CONVENTION. 505
offered a fair compromise, when they proposed the
compound basis of population and taxation, or the
basis of the Federal numbers. We thought that we
had republican precedent for this — a precedent given
us by the wisest and truest patriots that ever were
assembled ; but that is now past. We are now willing
to meet on a new middle ground, beyond what we
thought was a middle ground, and the extreme on the
other side. We considered the Federal numbers as
middle ground, and we may, perhaps, now carry that
proposition. The gentleman assumed too much when
he said that question was decided. It cannot be con
sidered as decided, till it has come before the House.
The majority is too small to calculate upon it as cer
tain in the final decision. We are all uncertain as to
the issue. But all know this, that if either extreme
is carried, it must leave a wound in the breast of the
opposite party, which will fester and rankle, and pro
duce I know not what mischief. The majority, also,
are now content once more to divide the ground, and
to take a new middle ground. The only difficulty is,
whether the compromise shall be affected by applying
one principle to the House of Delegates, and the other
to the Senate, or by mingling the two principles, and
applying them in the same form to both branches of
the Legislature? I incUne to the latter opinion. I
do not know, and have not heard, any sufficient rea
son assigned for adopting different principles in the
two branches. Both are the Legislature of Virginia,
and if they are to be organized on different principles,
there wUl be just the same divisions between the two,
as appears in this Convention. It can produce no
good, and may, I fear, produce some mischief It will
be said, that one branch is the representation of one
division of the State, and the other branch of another

506 LIFE OF JOHN MARSHALL.
division of it. Ought they not both to represent the
whole ? Yet I am ready to submit to such an arrange
ment, if it shall be the opinion of a majority of this
House. If this Convention shall think it best that
the House of Delegates shall be organized in one way,
and the Senate in another, I shall not withhold my
assent. Give me a Constitution that shall be received
by the people ; a Constitution in which I can consider
their different interests to be duly represented, and I
will take it, though it may not be that which I most
approve. . . .
' The principle, then, which I propose as a compro
mise is, that the apportionment of representation shall
be made according to an exact compound of the two
principles, of the white basis and of the Federal num
bers, according to the census of 1820.'
This 'exact compound' would have given, as the
basis of representation, the whole white population,
and three-tenths of the colored, whether bond or free.
After considerable discussion, the Chief Justice again
addressed the Convention, and his speech, though
short, ' was at the time regarded as an unrivalled
specimen of lucid and conclusive reasoning.' '
' Two propositions,' he said, ' respecting the basis of
representation, have divided this Convention almost
equally. One party has supported the basis of white
population alone, the other has supported a basis com
pounded of white population and taxation ; or, which
is the same thing in its results, the basis of Federal
numbers. The question has been discussed, until dis
cussion has become useless. It has been argued, until

Southern Literary Messenger, vol. ii., p. 188.

VIRGINIA STATE CONVENTION. 507
argument is exhausted. We have now met on the
ground of compromise. . . . One party proposes that
the House of Delegates shall be formed on the basis of
white population exclusively, and the Senate on the
mixed basis of white population and taxation, or on
the Federal numbers. The other party proposes that
the white population shall be combined with Federal
numbers, and shall, mixed in equal proportions, form
the basis of representation in both Houses. This last
proposition must be equal. All feel it to be equal.
If the two principles are combined exactly, and, thus
combined, form the basis of both Houses, the compro
mise must be perfectly equal, , . .
' After the warm language (to use the mildest
phrase) which has been mingled with argument on
both sides, I heard, with inexpressible satisfaction,
propositions for compromise proposed by both parties,
in the language of conciliation. I hail these auspicious
appearances with as much joy as the inhabitant of the
polar regions hails the reappearance of the sun after
his long absence of six tedious months. Can these
appearances prove fallacious ? Is it a meteor we have
seen, and mistaken for that splendid luminary which
dispenses light and gladness throughout creation ? It
must be so, if we cannot meet on equal ground. If we
cannot meet on the line that divides us equally, then
take the hand of friendship, and make an equal com
promise ; it is vain to hope that any compromise can
be made.'
A gentleman from Augusta County, who had taken
a prominent part in the debate, and certainly dis
played a good deal of ability, replied to the Chief Jus
tice. One of his friends pronounced his argument to
be unanswerable. This called up John Randolph,

508 LIFE OF JOHN MARSHALL.
whose esteem and admiration for Judge Marshall, we
are told (though they differed widely on Federal poli
tics) amounted almost to idolatry.'
' The statement of the argument,' said he, ' by the
gentleman from Richmond, the Chief Justice of the
United States, had been such, as to put at defiance all
that gentleman had said, or all that any man on earth
could say. Where was the necessity of defending the
fortress of Gibraltar against the abortive and puny
attacks of the gentleman from Augusta? The Chief
Justice had put the argument on ground which never
could be shaken ; and which had no more been im
pugned, than the fortress of Gibraltar could be affected,
by attacking it with a pocket pistol. He had put it in a
light — I do not mean any compliment — in which he
puts everything that he attempts to place in a clear
light. He bad shown that the weak and helpless gov
ernment proposed in the plan of the gentleman from
Frederick was not what it was represented to be, and
had shown them what was a compromise.'
On the various questions relating to the Judiciary,
the Chief Justice manifested great interest. He was
particularly anxious to preserve the county court sys
tem; a system, by the bye, which Mr. Jefferson re
garded with the utmost aversion. The justices of
these courts, said the latter, ' are self-chosen, are for
life, and perpetuate their own body in succession for
ever, so that a faction once possessing themselves of
the Bench of a county, can never be broken up, but
hold their county in chains forever indissoluble. Yet
these justices are the real Executive, as well as Judi-

Southern Literary Messenger, vol. ii., p, 188,

VIRGINIA STATE CONVENTION, 509
ciary, m all our minor and most ordinary concerns
-I hey tax us at wiU ; fill the office of sheriff .
name nearly all our military leaders, which leaders,
once named, are removable but by themselves. The
juries, our judges of all fact, and of law when they
choose It, are not selected by the people, nor amenable
to them. They are chosen by an officer named by
the Court and Executive," Judge Marshall, on the
contrary, adverting to the practical operation of these
courts, would preserve them, and preserve, too, the
mode in which the justices were appointed.

gex-

'I am not in the habit,' he said, 'of bestowin^
travagant eulogies upon my countrymen; I would
rather hear them pronounced by others ; but it is a
truth, that no State in the Union has hitherto enjoyed
more complete internal quiet than Virginia. There is
no part of America, where less disquiet, and less of iU-
feeUng between man and man is to be found, than in
this Commonwealth; and I beUeve, most firmly, that
this state of things is mainly to be ascribed to the
practical operation of our county courts. The magis
trates who compose those courts consist, in general, of
the best men in their respective counties. They act
in the spirit of peace-makers, and allay, rather than
excite, the small disputes and differences which will
sometimes arise among neighbors. It is certainly much
owing to this, that so much harmony prevails amongst
us. These courts must be preserved : if we part with
them, can we be sure that we shall retain among our
justices of the peace the same respectability and weight
of character as are now to be found ? I think not.'
' Jefferson's Works. Letter to Samuel Kerohival, July 12th,
1816.

510 LIFE OF JOHN MARSHALL.
John Randolph declared that he had long considered
the county court system as one of the main pillars 'in
the ancient edifice of our State Constitution.' In the
course of the discussion upon this subject, ' the Chief
Justice, thinking that some remark of his had been
understood by Mr. Randolph as personally unkind,
arose with earnestness to assure him it was not so in
tended. Mr. R.. as earnestly strove to quiet Judge
M.'s uneasiness, by assuring him that he had not un
derstood the remark as offensive. In their eagerness,
the one to apologize, and the other to sjiow that no
apology was necessary, they interrupted each other
two or three times : at length Mr. R. effectually
silenced his friend by saying, " I know the goodness
of his heart too well to have supposed it possible that
he could have intended to give me pain. Sir, I be
lieve that, like My Uncle Toby, he would not even
hurt a fly I"' ^
One clause of the proposed Constitution provided .
that no modification or abolition of any court' should
be construed to deprive any judge thereof of his office;
but such judge should perform any judicial duties
which the Legislature might assign him. It met with
great opposition ; but was supported with equal ear
nestness by Judge Marshall. He contended that the
independence of the judges was absolutely essential.
' I have grown old in the opinion,' said he, ' that there
is nothing more dear to Virginia, or ought to be dearer
to her statesmen, and that the best interests of our
country are secured by it. Advert, Sir, to the duties
of a judge. He has to pass between the Government
and the man whom that Government is prosecuting :

Southern Literary Messenger, vol, ii., p. 188,

VIRGINIA STATE CONVENTION, 511
between the most powerful individual in the commu
nity, and the poorest and most unpopular. It is of the
last importance that, in the exercise 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 pro
perty, depends on that fairness ? The judicial depart
ment comes home, in its effects, to every man's fire
side : it passes on his property, his reputation, his life,
his aU. Is it not, to the last degree, important, that
he should be rendered perfectly and completely inde
pendent, with nothing to influence or control him but
God and his conscience ?' ' We have heard about sine
cures and judicial pensioners. Sir, the weight of such
terms is well known here. To avoid creating a sine
cure, you take away a man's duties, when he wishes
them to remain ; you take away the duty of one man,
and give it to another : and this is a sinecure. What
is this, in substance, but saying, that there is no such
thing as judicial independence? You may take a
judge's duties awaj-, and then discard him. What is
this but saying, that there is, and can be, and ought
to be, no such thing as judicial independence?' 'I
have always thought, from my earliest youth till now^,
that the greatest scourge an angry Heaven ever in
flicted upon an ungrateful and a sinning people, was
an ignorant, a corrupt, or a dependent judiciary. Will
you draw down this curse upon Virginia ? Our ances
tors thought so ; we thought so till very lately ; and
I trust the vote of this day will show that we think
so still.'
Judge Marshall objected to that clause of the pro
posed Constitution which inhibited the Senate from
altering a money bill, and confined their action simply

512 LIFE OF JOHN MARSHALL.
to its approval or rejection. 'He never could con
ceive,' he said, ' the reason in favor of this part of the
old Constitution. It had ahvays appeared to him to
have been introduced into it, from an assimilation of
the Senate to the House of Lords. . . . But nothing
could be more dissimUar than our Senate and the
House of Lords, which was a paramount body, heredi
tary in its structure, sitting in its own right, and natu
rally apt to be much under the influence of the
Crown.' ' But there was nothing of this sort in Vir
ginia. The members of the Senate were as much the
representatives of the people as those of the House of
Delegates. They were elected in the same manner,
by the same persons, and they receive the same pay
as members of the other House.' On his motion, the
clause was struck out.
Among the noticeable votes of the Chief Justice was
one against empowering the Legislature to declare, by
law, the disqualification of any person to hold office
under the Government of Virginia, who should fight a
duel, or send or accept a challenge, or act as second to
either party, or knowingly be the bearer of a chal
lenge.' As he did not explain the reasons that in-
' This provision was incorporated into the Constitution by a large
majority; by a vote of more than two-thirds of the members in its
favor. As Virginia, in the previous Presidential election, had voted
for General Jackson, who had been engaged in several duels and
rencontres, it gave John Randolph an opportunity to make one of
his characteristic retorts. ' You will vote for a man,' said he, ' who
has fought a duel, for President of the United States, and then you
come back here, and gravely declare that no such man shall be a
member of that august and illustrious assembly, the House of Bur
gesses 1 Sir, it is over-shooting the mark. . . It is a sanctimonious
sort of republicanism not to my taste, not at all.'

VIRGINIA STATE CONVENTION. 513
duced him to give this vote, it may be idle to conjec
ture them. We are persuaded, however, that he was
favorable to the object sought to be attained, that is,
the suppression of dueUing; and only objected to the
means employed to effect it. He might object to
giving the Legislature a power of disfranchisement,
A general power of that kind would be extremely
dangerous, and such as no legislative body ought to
be entrusted with. It might, in times of excitement,
be exercised so as to disqualify an opposing party in
poUtics, or an obnoxious sect in religion. The Chief
Justice might be opposed to recognising a principle of
that nature, however modified or restricted it might
be, lest in the future an enlarged application of it
should be demanded.
The respect and affection with which all parties in
the Convention regarded him was very marked and
observable. Any dissent from his opinions was almost
invariably accompanied by some expression of venera^
tion for his character, or attachment to his person.
Indeed, it was said that there was some little inconsis
tency on the part of certain members, between their
warm professions of respect for his wisdom and grati
tude for his spirit of conciliation, and their votes,
which by no means conformed to his, ' Up gets the
gentleman from Loudon,' said B, Watkins Leigh, when
discussing the question as to the basis of representa
tion, ' and thanks his honored, and venerable, and
venerated friend from Richmond (Judge Marshall), for
saying that he will vote for their proposition ; and im
mediately after, another gentleman from Loudon made
an occasion to say that his highly venerated friend
was his political father — that he took delight in fol
lowing his lessons — and that it was gratifying to his
heart to find, that his very venerable friend from Rich-
VoL, IL — 33

514 LIFE OF JOHN MARSHALL.
mond was wUUng to take what they proposed to give,
if he could not get what he preferred. But, Sir, have
we heard one word like a purpose to meet the gene
rous spirit of that gentleman with a like generous
spirit ? Any, the least intimation, that if their propo
sition failed, they would accede to his? Not one
word. . . . The generous and affectionate disposition
of the gentleman from Richmond they applaud and
countenance; but they — they wiU yield nothing!
They were called upon to stand firm, and firm they
stand.' The Constitution finally adopted by the Convention
was the result of mutual concession and compromise.
Many of its features, considered separately, the Chief
Justice could not approve. We have seen what
opinions he entertained with regard to the question of
suffrage, the basis of representation, and the inde
pendence of the Judiciary. His politics were conserv
ative ; but he was too wise not to know that it is an
eternal law of political society, that concession and
compromise are essential to its existence. ' All gov
ernment, indeed every human benefit and enjoyment,
every virtue, and every prudent act, is founded on
compromise and barter. We balance inconveniences ;
we give and take; we remit some rights, that we may
enjoy others ; and we choose rather to be happy citi
zens, than subtle disputants." On these principles,
the Chief Justice gave his cordial assent to the Consti
tution of Virginia, though, in several of its provisions,
it ran counter to his opinions.
He was now in the seventy-fifth year of his age,
and, apart from his duties as Chief Justice, he did not
' Burke. Speech on Conciliation with America.

VIRGINIA STATE CONVENTION. 515
again mingle in public life. Indeed, with the excep
tion of this Convention, and the Convention which
assembled at Charlottesville in the previous year, to
devise a system of internal improvements for the
State, and of which be was a member, he had not done
so since his accession to the Bench.
In the following chapter we shall trace his footsteps
through the brief, remaining period of bis life, and
view him more closely as a man and a citizen.

516 LIFE OF JOHN MARSHALL.

CHAPTER XIV.
1829 — 1835.
CONCLUSION.
The residence of the Chief Justice in Richmond
was built by himself, and situated on Shockhoe Hill.'
' 'Among the oldest and most respectable of the occupants of Shock
hoe Hill was the Ambler family, of which the Treasurer, Jaquelin
Ambler was the head. His own residence yet stands, between Mar
shall and Clay streets, and is occupied by one of his sons-in-law. His
daughters were married to gentlemen who built their dwellings not
far from the paternal mansion, and a distinguished circle they
formed. ' Chief Justice (then General) Marshall is entitled to priority. His
residence yet stands on the street named in his honor, but the
grounds have been reduced one-half, and a number of fine dwellings
erected on them, between Eighth and Ninth streets.
'Col. Edward Carrington, also a soldier of the Revolution, married
another of the Misses Ambler, a most excellent lady, as was each of
her sisters. He was a member of the old Congress in 1785-6. The
high estimation in which Col. Carrington was held by his personal
friend. General Washington, is shown by his selection of him to be
Quarter-Master General, when, in 1798, war with France was ex
pected, and an organization of officers formed for the crisis. Under
John Adams's Administration, Col. Carrington held the office of
Commissioner of the Revenue of the United States for Virginia —
direct taxes being then resorted to, in consequence of the depreda
tions on our commerce. , , , Col. Carrington was a man of dignified
deportment, which was well sustained by his tall and massive figure.
He was a pure patriot, and pure in all the relations of life. He died
October 28th, 1810, aged 61.

CONCLTTSION. 517
Though without the slightest architectural pretensions,
it was commodious, and the grounds were ample.' No
man was more attached to his home, and his judicial
labors were so distributed, that he was enabled to
spend the most of each year in the midst of his family.
The session of the Supreme Court at Washington, and
the Circuit Courts for Virginia and North Carolina,
completed the annual round of his judicial duties.
Having considerable leisure, and being fond of agri
culture, he purchased a farm three or four mUes from
Richmond, which he visited frequently, often on foot.
He also owned a farm in Fauquier, his native county,
to which he made an annual visit. His family and
social attachments were warm and constant, and his
periodical visits to Fauquier were always highly en
joyed both by himself and his numerous relatives and
friends. He took great delight in social, and even convivial
pleasures. He was a member of The Barbacue, or
Quoit Club, at Richmond, for more than forty years;
and no one participated in the exercise and recreation
that topk place at their meetings with more zest and
enthusiasm than himself The Club was formed in
1788, and consisted of thirty members. They met once
a fortnight, from May until October, at a place near
'Buchanan's Spring,' about a mile from the town. A
'Daniel Gall, a distinguished lawyer, married another of the sis
ters Ambler, and his residence on the square between the Capitol and
Broad street was taken down a few years ago, to be substituted by
Mr. Valentine's large store.
'George Fisher married a fourth sister, and he, a retired merchant,
and one of our oldest citizens, is the survivor of all that I have men
tioned, and is the occupant of the patriarchal mansion of Treasurer
Ambler.' — Richmond in By-gone Days, p. 64 et seq.
' About two acres.

518 LIFE OF JOHN MARSHALL.
visitor, who was present at a meeting of the Club, in
the life-time of the Chief Justice, has given the follow
ing account of it: —
' The Club consists,' he says, ' of judges, lawyers,
doctors, and merchants, and the Governor of the Com
monwealth has a general invitation when he enters
into office. What gave additional interest to this
body, some years ago, was the constant attendance (as
honorary members) of two venerable clergymen — one
of the Episcopal, and the other of the Presbyterian
Church — who joined in the innocent pastime of the
day. They were pious and exemplary men, who dis
cerned no sin in harmless gaiety. Quoits and back
gammon are the only games indulged in, and one of
the clergyman was, for many years, "cock of the
walk' in throwing the discus. They are gone to their
account, and have left a chasm that has not been
filled.' ' Some years ago an amendment was made to the
constitution, which admits the use of porter. Great
opposition was made to this innovation, and the de
struction of the Club was predicted as the consequence.
The oppositionists, however, soon became as great con
sumers of malt and hops as their associates ; and now
they even consent to the introduction of wine at the
last meeting of every year, provided there be " a shot
in the locker." The members each advance ten dol-
' One of these clergymen was the Rev. Mr. Buchanan, an Episco
palian, and the other the Rev. Mr. Blair, a Presbyterian. 'These
two clergymen were beloved throughout the community, for their
many virtues. They were not ascetics, but liked to see their flocks
gay and happy, and to promote and partake of such feelings within
proper bounds. Each possessed a fund of wit, and was liberal in ex
pending it.' — Richmond in By-gone Days, p. 120.

CONCLTTSION, 519
lars to the treasurer at the beginning of the season,
and every member is entitled to invite any strangers
as guests, on paying into the general fund one dollar
for each ; while the caterers of the day, consisting of
two members in rotation, provide, and have the privi
lege of bringing each a guest (either citizen or non
resident) at free cost,
' On the day I was present, dinner was ready at
half-past three o'clock, and consisted of excellent meats
and fish, well-prepared and well-served, with the vege
tables of the season. Your veritable gourmand never
faUs to regale himself on his favorite barbecue, which
is a fine fat pig, caUed " shoot," cooked on the coals,
and highly-seasoned with cayenne; a dessert of melons
and fruits follows, and punch, porter, and toddy, are
the table liquors ; but with the fruits comes on the
favorite beverage of the Virginians, mint julep, in
place of wine. I never witnessed more festivity and
good humor than prevail at this Club. By the consti
tution, the subject of politics is forbidden, and each
man strives to make the time pleasant to his com
panions. The members think they can offer no higher
compliment to a distinguished stranger, than to intro
duce him to the Club ; and all feel it a duty to contri
bute to his entertainment. It was refreshing to see
such a man as Chief Justice MarshaU laying aside the
reserve of his dignified station, and contending with
the young men at a game of quoits, with all the emu
lation of a youth.
' Many anecdotes are told of occurrences at these
meetings. Such is the partiality for the Chief Justice,
that it is said the greatest anxiety is felt for his suc
cess in the game by the bystanders ; and, on one occa
sion, an old Scotch gentleman was called on to decide
between his quoit and that of another member, who,

520 LIFE OF JOHN MARSHALL.
after seemingly careful measurement, announced, "Mis
ter Mareshall has it a leattle," when it was visible to all
that the contrary was the fact. A French gentleman
(Baron Quenet) was at one time a guest, when the
Governor, the Chief Justice, and several of the Judges
of the High Court of Appeals, were engaged with
others, with coats off, in a well-contested game. He
asked, " if it was possible that the dignitaries of the
land could thus intermix with private citizens;" and,
when assured of the fact, he observed, with true galli-
can enthusiasm, that " he had never before seen the
real beauty of republicanism,"'^
Not one of the members, it is stated, was more punc
tual in his attendance at the meetings of the Club,
than, the Chief Justice, and not one who contributed
more to their pleasantness. Even in advanced years,
he was 'among the most skilful in throwing the dis
cus as he was in discussion, , . . and it delighted bis
competitors as much as himself, to see him " ring the
meg.'"^ 'He would hurl his iron ring of two pounds
weight, with rarely erring aim, fifty-five or sixty feet;
and, at some chef d'ceuvre of skill in himself or his
partner, would spring up and clap bis bands, with all
the light-hearted enthusiasm of boyhood,'^ In his
yearly visits to Fauquier, ' where the proper imple
ments of his sport were not to be had, he still prac
tised it among his rustic friends, with flat stones
for quoits, A casual guest at a barbacue in that
county — one of those rural entertainments so frequent
among the country people of Virginia — soon after his
arrival at the spot, saw an old man emerge from a
' American Turf Register for 1829.
" Richmond in By-gone Days, p, 189.
^ Southern Literary Messenger, vol. ii,, p. 188.

CONCLUSION. 521
thicket which bordered the neighboring brook, carry
ing as large a pile of these flat stones as he could hold
between his right arm and his chin: he stepped
briskly up to the company, and threw down his load
among them, exclaiming, " There I Here are quoits
enough us for aU 1" The stranger's surprise may be
imagined, when he found that this plain and cheerful
old man was the Chief Justice of the United States.' '
In all his actions, there was the same winning sim
plicity, the same forgetfulness of self; 'his native
humility, modesty, and candor never forsook him,
even on surprise or provocation; nor was the least
degree of assumption visible to the most scrutinizing
eye, in any part of his conduct or discourse.' ^
'He was a most conscientious man,' says Bishop
Meade, ' in regard to some things which others might
regard as too trivial to be observed. It was my privi
lege, more than once, to travel with him between Fau
quier and Fredericksburgh, when we were both going
to the lower country. On one occasion, the roads
being in their worst condition, when we came to that
most miry part called the "Black Jack," we found
that the travellers through it had taken a nearer and
better road through a plantation. The fence being
down, or very low, I was proceeding to pass over, but
he said we had better go round, although each step
was a plunge, adding, that it was his duty, as one in
office, to be very particular in regard to such things.
As to some other matters, however, he was not so par
ticular. Although myself never much given to dress
or equipage, yet I was not at all ashamed to compare

' Southern Literary Messenger, vol. ii., p. 189.
2 Burke of Sir Joshua Reynolds, and eminently true of Marshall.

522 LIFE OF JOHN MARSHALL.
with him during these travels, whether as to clothing,
horse, saddle, or bridle. Servant he had none. Fede
ralist as he was in politics, in his manners and habits
he was truly republican. Would that all republicans
were like him in this respect. . . . On one of my visits
to Richmond, being in a street near his house, between
daybreak and sunrise one morning, I met him on
horseback, with a bag of clover-seed lying before him,
which he was carrying to bis farm, it being the time
of sowing such seed."
The dress of the Chief Justice was always plain,
and worn very carelessly. He usually wore blue-
mixed woollen stockings, and a suit of black, of rather
ordinary quality. He adhered to the mode of the last
centur}', but his body was so ill-compacted, that it
balked and marred the utmost skill of the shears. He
was an early riser; 'and nothing was more usual, than
to see him returning from market at sunrise, with
poultry in one hand, and a basket of vegetables in the
other.' ^ It is related that, while at the market on one
occasion, a young man, who had recently removed to
Richmond, was swearing violently because he could
hire no one to take home his turkey. Marshall
stepped up, and, ascertaining of him where he lived,
replied, ' That is in my way, and I will take it for
you.' When arrived at his dwelling, the young man
inquired, 'What shall I pay you?' 'Oh, nothing,'
was the rejoinder, 'you are welcome; it was on my
way, and no trouble.' ' Who is that polite old gentle
man who brought home my turkey for me ?' inquired
the other of a bystander, as Marshall stepped away.
' Old Churches and Families of Virginia, vol. ii., p. 222,
' Southern Literary Messenger, vol, ii., p. 188.

CONCLUSION, 523
'That,' replied he, 'is John Marshall, Chief Justice
of the United States.' ' The mortification of the young
man may be imagined.
As we have already remarked, he held the Circuit
Courts for Virginia and North Carohna, and nothing
could present a greater contrast than the Lord Chan
cellor of England going in state to Westminster Hall,
and the Chief Justice of the United States making his
annual journey to Raleigh, in the latter State, to pre
side at the Federal Court held there. His style of
travelling to and from that place, about 175 miles
each way, ' was, for many years, in that primitive
sort of vehicle, a stick gig (or chair, as it was then
called), with one horse, and with no attendant.' ^
His equipage, dress, and unpretending manner never
would have suggested to a stranger the remotest idea
of his position in life. He was once travelling in the
northern part of Virginia, and about night-fall arrived
at the village of Winchester, in Frederick County. He
drove to what was then known as M'Guire's hotel.
What occurred there has been thus related : —
' It is not long since a gentleman was travelling in
one of the counties of Virginia, and, about the close of
the day, stopped at a public house to obtain refresh
ment, and spend the night. He had been there but a
short time, before an old man alighted from his gig,
with the apparent intention of becoming his fellow-
guest at the same house. As the old man drove up,
he observed that both the shafts of his gig were

' Howe's Virginia Historical Collections, page 266.
^ Richmond in By-gone Days, p. 64.

524 LIFE OF JOHN MARSHALL.
broken, and that they were held together by withes
formed from the bark of a hickory sapling. Our tra
veller observed further, that he was plainly clad, that
his knee-buckles were loosened, and that something
like negligence pervaded his dress. Conceiving him
to be one of the honest yeomanry of our land, the
courtesies of strangers passed between them, and they
entered the tavern. It was about the same time that
an addition of three or four young gentlemen was
made to their number — most, if not all of them, of
the legal profession. As soon as they became conve
niently accommodated, the conversation was turned
by the latter upon an eloquent harangue which had
that day been displayed at the Bar. It was replied
by the other, that he had witnessed, the same day, a
degree of eloquence no doubt equal, but that it was
from the pulpit. Something like a sarcastic rejoinder
was made to the eloquence of the pulpit; and a warm
and able altercation ensued, in which the merits of
the Christian religion became the subject of discus
sion. From six o'clock until eleven, the young cham
pions wielded the sword of argument, adducing, with
ingenuity and ability, everything that could be said
pro and con. During this protracted period, the old
gentleman Ustened with all the meekness and modesty
of a child ; as if he was adding new information to the
stores of his own mind ; or perhaps he was observing,
with philosophic eye, the faculties of the youthful
mind, and how new energies are evolved by repeated
action; or, perhaps, with patriotic emotion, he was
reflecting upon the future destinies of his country, and
on the rising generation upon whom these future des
tinies must devolve; or, most probably, with a senti
ment of moral and religious feeling, he was collecting
an argument which — characteristic of himself — no

CONCLUSION. 525
art would be "able to elude, and no force resist."
Our traveller remained a spectator, and took no part
in what was said.
' At last one of the young men, remarking that it
was impossible to combat with long established pre
judices, wheeled around, and with some famiUarity
exclaimed, " WeU, my old gentleman, what think you
of these things ?" If, said the traveller, a streak of
vivid lightning had at that moment crossed the room,
their amazement could not have been greater than it
was with what followed. The most eloquent and un
answerable appeal was made for nearly an hour, by
the old gentleman, that he ever heard or read. So
perfect was his recollection, that every argument
urged against the Christian reUgion was met in the
order in which it was advanced. Hume's sophistry
on the subject of miracles was, if possible, more per
fectly answered than it had already been done by
Campbell. And in the whole lecture there was so
much simpUcity and energy, pathos and subUmity,
that not another word was uttered. An attempt to
describe it, said the traveller, would be an attempt to
paint the sunbeams. It was now a matter of curiosity
and inquiry who the old gentleman was. The traveller
concluded it was the preacher from whom the pulpit
eloquence was heard; but no, it was the Ghief Justice
of the United States' ^
If a stranger might not infer Marshall's greatness
from bis personal appearance, he could not long be in
his company without perceiving his goodness, his un-
' This anecdote was originally published in the Winchester Re
publican, but preserved in durable form by being printed in Howe's
Virginia Historical Collections, p, 275,

526 LIFE or JOHN MARSHALL,
affected kindness, and genial nature, ' Meet him in a
stage-coach, as a stranger, and travel with him a whole
day, and you would only be struck with his readiness
to administer to the accommodations of others, and his
anxiety to appropriate the least to himself Be with
him, the unknown guest at an inn, and he seemed
adjusted to the very scene, partaking of the warm wel
come of its comforts, whenever found, and, if not found,
resigning himself without complaint to its meanest
arrangements. You would never suspect, in either
case, that he was a great man ; far less, that he was
the Chief Justice of the United States, But if, per
chance, invited by the occasion, you drew him into
familiar conversation, you would never forget that you
had seen and heard that " old man eloquent," ' '
He was fond of the young, and they found in him a
cheerful and most agreeable companion. ' One, whose
first recollection of him referred to his triumphal entry
(for such it was) into Richmond, on his return from
France, and who, as a printer's boy, afterwards, for
several years, was carrier of a newspaper to him, de
scribes him as "remarkably fond of boys' company —
always chatty — and always pleasant."^ The same
printer's boy having been transferred to Washington,
in 1800, while Marshall was Secretary of State, re
newed his acquaintance with him. ' Again,' he says,
' did the pleasing office of serving him with the
" Washington Federalist" devolve on me. He resided
in a brick building hardly larger than most of the
kitchens now in use. I found him stUl the same
plain, unostentatious John Marshall: always accessi-

' Story's Discourse, p. 52.
' Southern Literary Messenger, vol. ii., p. 189.

CONCLUSION. 527
ble, and always with a smUe on his countenance when
I handed him the "FederaUst." His kindness of
manner won my affections ; and I became devotedly
attached to him."
No man was more just or more generous. In his
deaUngs he was so scrupulous, as always to pre
fer his own loss to the possibility of bis wronging
another.^ In his practice at the Bar, he never know
ingly argued in defence of injustice, or took a legal
advantage at the expense of moral honesty. He once
endorsed a bond amounting to several thousand dol
lars; and the drawer having faded, he was called
upon to pay it. He knew the bond could be avoided,
because the holder had advanced the money at usuri
ous interest ; but he was utterly incapable of throwing
off the moral obligation in that way, and he paid it.^
His generosity was ' as large as his mind, and as unos
tentatious as his life.' We shall cite a single example.
'In passing through Culpepper, on his way to Fau
quier, he fell in company with Mr, S,, an old fellow-
officer in the army of the Revolution, In the course
of conversation, Marshall learned that there was a
lien upon the estate of his friend to the amount of
$3000, about due, and he was greatly distressed at
the prospect of impending ruin. On bidding farewell,
Marshall privately left a check for the amount, which
being presented to Mr, S., after his departure, he,
impelled by a chivalrous independence, mounted, and
spurred his horse until he overtook his friend. He
thanked him for bis generosity, but refused to accept it.

' Southern Literary Messenger, vol. ii., p- 189.
" Ibid.
¦¦' Howe's Virginia Historical Collections, p. 266.

528 LIFE OF JOHN MARSHALL.
Marshall strenuously persisted in its acceptance, and the
other as strongly persisted in not accepting. Finally,
it resulted in a compromise, by which Marshall took
security on the lien, but never called for pay.' ' He
was a member, for nearly half a century, of the Ami
cable Society at Richmond, which was formed to re
lieve strangers and wayfarers in distress, for whom the
law made no provision. In short, his unobtrusive acts
of generosity were innumerable, and flowed from the
spontaneous goodness of his heart.
Upon the vexed and disagreeable, but important
subject of slavery, his opinions were well known. He
belonged to the Colonization Society, and manifested
much interest in its objects. Though a slaveholder
himself, he, nevertheless, regarded the institution as
an incubus upon the prosperity of a State ; an incubus
whose effects the Colonization Society might palliate,
but could not remove. Until the British emancipa
tion in the West Indies, he always maintained that
the abolition of slavery by legal enactment was im
practicable ; and that the evil was incurable, except
by convulsion. After the experiment was actually
made, he is said to have expressed hope as to the
future of his beloved Virginia. Possibly, if he had
lived to see the result in the West Indies, he might
have anticipated less good from a similar experiment
elsewhere. To promote the objects of the Colonization
Society, he was in favor of an application to the seve
ral States for permanent aids ; but his chief reliance
was upon the General Government. ' It is undoubt
edly of great importance,' he said, 'to retain the coun
tenance and protection of the General Government.
Some of our cruisers stationed on the coast of Africa
' Howe's Virginia Historical Collections, p, 266.

CONCLUSION. 529
would, at the same time, interrupt the slave-trade —
a horrid traffic, detested by all good men— and would
protect the vessels and commerce of the colony from
pirates who infest those seas. The power of the Gov
ernment to afford this aid is not, I believe, contested.
I regret that its power to grant pecuniary aid is not
equally free from question. On this subject I have
always thought, and stiU think, that the proposition
made by Mr. King, in the Senate, is the most un
exceptionable, and the most effective, that can be
devised  The lands are the property of the
United States, and have hitherto been disposed of
by the Government under the idea of absolute owmer-
ship.'^ Though taking no part in the political controversies
of the day, Marshall manifested to the last a warm
interest in them. To the prevailing politics of his
native State he was invincibly opposed. Towards the
latter part of his life, he viewed, with something of
gloom and despondency, the future prospects of his
country, from the ascendency of principles which he
believed would destroy the efficiency and perpetuity
of the General Government. In a letter to Judge
Story, two years before his death, he says, ' I have
just finished reading your great work,^ and wish it
could be read by every statesman, and every would-be
statesman in the United States. It is a comprehensive
and an accurate commentary on our Constitution,
formed in the spirit of the original text. In the South,
' Fifteenth Annual Report of the Colonization Society, p. 32. Let
ter from Marshall, December 14th, 1831.
^ Commentaries on the Constitution; which were dedicated to
Judge Marshall.
Vol. IL — 34

530 LIFE OF JOHN MAESHALL.
we are so far gone in political metaphysics, that I fear
no demonstration can restore us to common sense.
The word " State Rights," as expounded by the reso
lutions of 1798, and the report of 1799, construed by
our Legislature, has a charm against which all reason
ing is vain. Those resolutions, and that report, con
stitute the creed of every politician who hopes to rise
in Virginia; and to question them, or even to adopt
the construction given by their author, is deemed
political sacrilege. The solemn and interesting admo
nitions of your concluding remarks will not, I fear,
avail as they ought to avail against this popular
frenzy. I am grateful for the very flattering terms in
which you speak of your friend in many parts of this
valuable work, as w^ell as in the dedication. In despite
of my vanity, I cannot suppress the fear, that you will
be supposed by others, as well as myself, to have con
sulted a partial friendship farther than your deliberate
judgment will approve. Others may not contemplate
this partiality with as much gratification as its ob-
ject." Tn a subsequent letter to Judge Story, he says : —
' On my return, a day or two past, from an annual
visit to our mountains, I had the real gratification of
receiving a number of the New England Magazine for
August last, containing an Essay, entitled " States
men : their Rareness and Importance," forwarded to
me by yourself, and thank you truly for the real plea
sure afforded by its perusal. The justness and solidity
of its sentiments, the distinguished individual who is
selected as an example of the real statesman,^ and the

' Story's Life and Letters, vol. ii., p. 135. July 31st, 1833.
" Daniel Webster.

CONCLUSION. 531
kind notice taken of an old friend who is under so
many obligations to you, designate the author as cer
tainly as if his name had been affixed to the
work. ' It is in vain to lament, that the portrait which the
author has drawn of our political and party men is, in
the general, true. Lament it as we may, much as it
may wound our vanity or our pride, it is still, in the
main, true; and will, I fear, so remain  In the
South, political prejudice is too strong to yield to any
degree of merit ; and the great body of the nation con
tains, at least appears to me to contain, too much of
the same ingredient. To men who think as you and
I do, the present is gloomy enough ; and the future
presents no cheering prospect. The struggle now
maintained in every State in the Union seems to me
to be of doubtful issue; but should it terminate con
trary to the wishes of those who support the enormous
pretensions of the Executive, should victory crown the
exertions of the champions of constitutional law, what
serious and lasting advantage is to be expected from
this result ? In the South (things may be less gloomy
with you) those who support the Executive do not
support the Government. They sustain the personal
power of the President, but labor incessantly to impair
the legitimate powers of the Government. Those who
oppose the violent and rash measures of the Execu
tive (many of them nuUifiers, many of them seceders)
are generally the bitter enemies of a constitutional
government. Many of them are the avowed ad
vocates of a league; and those who do not go the
whole length, go great part of the way. What can
we hope for in such circumstances? As far as I
can judge, the Government is weakened, whatever

532 LIFE OF JOHN MARSHALL.
party may prevail. Such is the impression I receive
from the language of those around me.' '
Though strongly opposed to the general policy of
Jackson's Administration, and the principles upon
which it was conducted, ifle Chief Justice warmly
approved his proclamation and message against nulli
fication. Secession and nullification he regarded as
political heresies of the most dangerous character; as
theories utterly subversive of all stability in our Gov
ernment, and at war with its fundamental principles.
Speaking of a dinner at the President's, about the time
of the debate on the Force bill. Judge Story says, ' I
forgot to say, that, notwithstanding I am " the most
dangerous man in America," ^ the President specially
invited me to drink a glass of wine with him. But,
what is more remarkable, since his last proclamation
and message, the Chief Justice and myself have be
come his warmest supporters, and shall continue so
just as long as he maintains the principles contained
in them. Who would have dreamed of such an occur
rence.' ^
Marshall was fond of books, which, in his intervals
of leisure, he read ' for delight.' His familiarity with
general literature was extensive. The great masters
of English letters were his favorite companions. He
read novels with intense interest, and would spend the
night over their alluring pages. He had formed a
very high estimate of female genius, and the produc
tions of female authors he read with an interest in
' Story's Life and Letters, vol. ii., p. 172. October 6th, 1834,
- ' So styled by General Jackson,
" Story's Life and Letters, vol. ii., p. 117. January 27th, 1833,

CONCLUSION. 533
some sort proportioned to his admiration of their sex.
Acknowledging the receipt of a discourse by Judge
Story, he says, ' I have read it with real pleasure, and
am particularly gratified with your eulogy on the
ladies. It is matter of great satisfaction to me to find
another judge who, though not as old as myself, thinks
justly of the fair sex, and commits his sentiments to
print, I was a little mortified, however, to find that
you had not admitted the name of Miss Austin into
your list of favorites, I had just finished reading her
novels when I received your discourse, and was so
much pleased with them, that I looked in it for her
name, and was rather disappointed at not finding it.
Her flights are not lofty, she does not soar on eagles'
wings, but she is pleasing, interesting, equable, and
yet amusing, I count on your making some apology
for this omission,' .'
The Chief'Justice had imbibed, in his youth, a love
of poetry; and the ' sweetly uttered wdsdom' of song
he found a solace and delight in his age. No doubt
these studies contributed very much to preserve his
intellect in that vigor and freshness which it exhibited
down to the very close of his Ufe. His mind was not
suffered to grow rigid by dwelling only on profes
sional topics ; but was variously exercised", which is
' healthful and sovereign for the understanding.'
The constitution of the Chief Justice was robust,
and his health good. From youth to age, he suffered
but little from sickness. In his latter years, however,
he was afflicted with that most excruciating malady,
the stone. In October, 1831, he visited Philadel
phia, and submitted to an operation by Dr. Physick,
' Story's Life and Letters, vol. i., p. 506. November 26th, 1826.

534 LIFE OF JOHNMARSHALL.
which gave him relief. 'This case,' says Dr. Ran
dolph, ' was attended with singular interest, in con
sequence of the exalted position of the patient, his ad
vanced age, and the circumstance of there being
upwards of one thousand calculi taken from his blad
der  It will be readily admitted that, in conse
quence of Judge Marshall's very advanced age, the
hazard attending the operation, however skilfully per
formed, was considerably increased. I consider it but
an act of justice, due to the memory of that good and
great man, to state that, in my opinion, his recovery
was, in a great degree, owing to his extraordinary
self-possession, and to the calm and philosophical
views which he took of his case, and the various cir
cumstances attending it. It fell to my lot to make
the necessary preparations. In the discharge of this
duty, I visited him on the morning of the day fixed
on for the operation, two hours previously to that at
which it was to be performed. Upon entering his
room, I found him engaged in eating his breakfast.
He received me with a pleasant smile upon his coun
tenance, and said, " Well, Doctor, you find me taking
breakfast, and I assure you I have had a good one. I
thought it very probable that this might be my last
chance, and therefore I was determined to enjoy it,
and eat heartily." I expressed the great pleasure
which I felt at seeing him so cheerful, and said that I
hoped all would soon be happily over. He replied to
this, that he did not feel the least anxiety or uneasi
ness respecting the operation or its result. He said
that he had not the slightest desire to live, laboring
under the sufferings to which he was then subjected ;
that be was perfectly ready to take all the chances of
an operation, and he knew there were many against
him ; and that, if he could be relieved by it, he was

CONCLUSION. 535
willing to Uve out his appointed time, but if not,
would rather die, than hold existence accompanied
with the pain and misery which he then endured.
After he had finished his breakfast, I administered to
him some medicine : he then inquired at what hour
the operation would be performed. I mentioned the
hour of eleven. He said, " Very well ; do you wish
me now for any other purpose, or may I lie down and
go to sleep?" I was a good deal surprised at this
question, but told him that if he could sleep it would
be very desirable. He immediately placed himself
upon the bed and feU into a profound sleep, and con
tinued so until I was obliged to rouse him in order to
undergo the operation. He exhibited the same forti
tude, scarcely uttering a murmur throughout the
whole procedure, which, from the peculiar nature of
his complaint, was necessarily tedious.' '
His situation had been considered dangerous, and,
throughout the country, caused much anxiety : his
happy recovery occasioned corresponding joy. ' Pray
teU the Chief Justice,' wrote Judge Story to his friend
Peters, 'how deeply every one here has been interested
in his situation. He is beloved and reverenced here
beyond all measure, though not beyond his merits.
Next to Washington, he stands the idol of all good
men. And who so well deserves it ? I look upon his
judicial life as good now for at least six years
longer ?' ^
Though recovering himself, he received, soon after,
' Memoir of Dr. P. S. Physick, by J. Randolph, M. D., p. 96, et
seq. ' Story's Life and Letters, vol. ii., p, 70, Letter to Richard Peters,
October 29th, 1831,

536 LIFE OF JOHN MARSHALL.
a severe blow in the death of his wife, to whom he was
ardently attached. She had suffered much from ill-
health, and the tender and assiduous attention he
paid to her, says Bishop Meade, was the most interest
ing and striking feature in his domestic character.
' Mrs. Marshall Avas nervous in the extreme. The least
noise was sometimes agony to her whole frame, and
his perpetual endeavor was to keep the house, and
yard, and outhouses, as free as possible from the
slightest cause of distressing her; walking himself, at
times, about the house and yard without shoes. On
one occasion, when she was in her most distressing
state, the town authorities of Richmond manifested
their great respect for him, and sympathy for her, by
having either the town-clock or town-bell muffled.' ^
MarshaU first met his future wife at York, while on
a visit to his father. Colonel Marshall, who was the
commanding officer at that place. She was but fourteen
years of age at the time, and it is stated to have been
a case of love at first sight. It is also said, that he
endeared himself to her femUy, 'notwithstanding his
slouched hat, and negligent and awkward dress, by his
amiable manners, fine talents, and especially his love
for poetry, which he read to them with deep pathos.'
In proof of the ardor of his character, and the tender
ness of his attachment to his intended wife, his sister-
in-law, Mrs. Carrington, remarks, that he often said to
her, ' that he looked with astonishment on the present
race of lovers,' so totally unlike what he had been him
self On his marriage, after paying the minister his
fee, his sole remaining fortune was a guinea.^

' Old Churches and Families of Virginia, vol. ii., p, 222,
* Ibid., vol. i., p. 99, note.

CONCLUSION. 537
Mrs. MarshaU died on the 25th of December, 1831.
Her loss weighed heavily on his spirits. ' On going
into the Cliief Justice's room this morning,' says his
friend, and brother judge, '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 even
ing 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 that 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 de
pressed, and rarely goes through a night without
weeping over his departed wife. She must have
been a very extraordinary woman, so to have at
tached him, and I think he is the most extraordinary
man I ever saw, for the depth and tenderness of his
feelings.' '
The following affecting tribute to her memory was
written by himself, December 25th, 1832 : —
' This day of joy and festivity to the whole Chris
tian world is, to my sad heart, the anniversary of the
keenest affliction which humanity can sustain. While
all around is gladness, my mind dwells on the silent
tomb, and cherishes the remembrance of the beloved
object which it contains.
' On the 25th of December, 1831, it was the wiU
of Heaven to take to itself the companion who had

¦ Story's Life and Letters, vol. ii., p. 86. Letter to Mrs. Story,
March 4th, 1832.

538 LIFE OF JOHN MARSHALL.
sweetened the choicest part of my life, had rendered
toil a pleasure, had partaken of all my feelings, and
was enthroned in the inmost recess of my heart.
Never can I cease to feel the loss, and to deplore it.
Grief for her is too sacred ever to be profaned on this
day, which shall be, during my existence, marked by
a recollection of her virtues.
'On the 3d of January, 1783, I was united by the
holiest bonds to the woman I adored. From the mo
ment of our union to that of our separation, I never
ceased to thank Heaven for this, its best gift. Not a
moment passed in which I did not consider her as a
blessing from which the chief happiness of my life was
derived. This never-dying sentiment, originating in
love, was cherished by a long and close observation
of as amiable and estimable qualities as ever adorned
the female bosom. To a person which, in youth, was
very attractive, to manners uncommonly pleasing,
she added a fine understanding, and the sweetest
temper which can accompany a just and modest
sense of what was due to herself. She was educated
with a profound reverence for religion, which she pre
served to her last moments. This sentiment, among
her earliest and deepest impressions, gave a coloring
to her whole life. Hers was the religion taught by
the Saviour of man. She was a firm believer in the
faith inculcated by the Church [Episcopal] in which
she was bred.
' I have lost her, and with her have lost the solace
of my life ! Yet she remains still the companion of
my retired hours, still occupies my inmost bosom.
When alone, and unemployed, my mind still recurs
to her. More than a thousand times, since the 25th
of December, 1831, have I repeated to myself the

CONCLUSION. 539
beautiful lines written by General Burgoyne, under
a similar affliction, substituting " Mary" for "Anna :"
'"Encompassed in an angel's frame,
An angel's virtues lay;
Too soon did Heaven assert its claim,
And take its own away !
My Mary's worth. My Mary's charms,
Can never more return !
What now shall fill these widowed arms?
Ah me! My Mary's urn!
Ah me ! Ah me ! My Mary's urn !" ' '
At the ensuing term of the Supreme Court (Janu
ary, 1833), the Chief Justice was at his .post, and,
though he had now attained the seventy-eighth year
of his age, his health seemed fully re-established. 'The
Court opened on Monday last,' says Judge Story, ' and
all the Judges were present, except Judge Baldwin.
They were in good health, and the Chief Justice espe
cially looked more vigorous than usual. He seemed
to revive, and enjoy anew his green old age. He
brought with him, and presented to each of us, a copy
of the new edition of his Life of Washington, in
scribing in the fly-page of mine a very kind remark. . .
Having some leisure on our hands, the Chief Justice
and myself have devoted some of it to attendance upon
the theatre, to hear Miss Fanny Kemble, who has
been in the city the past week. We attended on Mon
day night, and, on the Chief Justice's entrance into
the box, he was cheered in a marked manner. He
behaved as he always does, with extreme modesty,
and seemed not to know that the compliment was de
signed for him. We have seen Miss Kemble as Julia,
' Old Churches and Families of Virginia, vol. ii., p. 223, note.

540 LIFE OF JOHN MARSHALL.
in the Hunchback, and as Mrs. Haller, in the Stran
ger. ... I have never seen any female acting at all
comparable to hers. She is so graceful, that you for
get that she is not very handsome. In Mrs. Haller,
she threw the whole audience into tears. The Chief
Justice shed them in common with younger eyes.' '
The celebrity of Marshall, the reverence and affec
tion with which he was regarded by his own country
men, naturally made him an object of interest to stran
gers visiting the United States. And he inspired in
them, as in every one who knew him, and became
acquainted with his character, sentiments of venerar
tion and esteem. Miss Martineau was in Washington
the winter preceding his death, and she has thus re
corded her impressions of his appearance and conver
sation : —
' With Judge Story,' she says, ' sometimes came the
man to whom he looked up with feelings little short
of adoration ; the aged Chief-Justice Marshall. There
was almost too much mutual respect in our first meet
ing; we knew something of his individual merits and
services; and he maintained through life, and carried
to his grave, a reverence for woman as rare in its kind
as in its degree. It had all the theoretical fervour and
magnificence of Uncle Toby's, with the advantage of
being grounded upon an extensive knowledge of the
sex. He was the father and the grandfather of woman;
and out of this experience he brought, not only the
love and pity which their offices and position com
mand, and the awe of purity which they excite in the
' Story's Life and Letters, vol. ii., p. 116. Letter to Mrs. Story,
January 2d, 1833.

CONCLUSION. 541

in-

minds of the pure, but a steady conviction of their
teUectual equality with men ; and, with this, a deep
sense of their social injuries. Throughout life he so
invariably sustained their cause, that no indulgent
libertine dared to flatter and humor, no sceptic, secure
in the possession of power, dared to scoff at the claims
of woman in the presence of Marshall, who, made
clear-sighted by his purity, knew the sex far better
than either.
' How delighted we were to see Judge Story bring
in the tall, majestic, bright-eyed old man ! — old by
chronology, by the lines on his composed face, and by
his services to the republic ; but so dignified, so fresh,
so present to the time, that no feeling of compassion
ate consideration for age dared to mix with the con
templation of him.
' The first evening, he asked me much about Eng
lish politics, and especially whether the people were
not fast ripening for the abolition of our religious esta
blishment — an institution which, after a long study
of it, he considered so monstrous in principle, and so
injurious to true religion in practice, that he could not
imagine that it could be upheld for anything but pohti
cal purposes. There was no prejudice here, on account
of American modes being different; for he observed
that the clergy were there, as elsewhere, far from being
in the van of society, and lamented the existence of
much fanaticism in the United States : but he saw the
evils of an establishment the more clearly, not the
less, from being aware of the faults in the administra
tion of religion at home. The most animated moment
of our conversation was when I told him I was going
to visit Mr. Madison, on leaving Washington. He in
stantly sat upright in his chair, and with beaming
eyes began to praise Mr. Madison. Madison received

542 LIFE OF JOHN MARSHALL.
the mention of Marshall's name in just the same man
ner : yet these men were strongly opposed in politics,
and their magnanimous appreciation of each other un
derwent no slight or brief trial.' '
In the spring of this year (1835), and after the re
turn of the Chief Justice to Virginia, another English
traveller spent a week at Richmond, enjoying the hos
pitality of its inhabitants; and to his pen we are in
debted for the following sketch of the Chief Justice :
'Judge Marshall, who is Chief Justice of the Su
preme Court, and, in fact. Lord Chancellor of the
United States, is one of the most remarkable and dis
tinguished men that has adorned the Legislature of
either shore of the Atlantic. He began life as a sol
dier; and, during the American war, served in the
militia, where he rose to the rank of General :^ after
which he came to the Bar, and passed through all its
gradations to his present high position, wliich is, in
my opinion, the proudest that an American can enjoy,
not excepting that of President; inasmuch as it is
less subject arbitrio popidaris aurce; and as the Court
over which he presides can affirm and decide what is
and what is not the Constitution of the United States.
' The Judge is a tall, venerable man, about eighty
years of age, his hair tied in a cue, according to olden
custom, and with a countenance "indicating that sim
plicity of mind and benignity which so eminently dis
tinguish his character. As a judge he has no rival,
his knowledge being profound, his judgment clear and
' Martineau's Western Travel, vol. i., p. 247, English ed.
' This is erroneous. After the war, and not during the war, he
served in the militia, and was appointed a militia general.

CONCLUSION. 543
just, and his quickness in apprehending either the fal
lacy or truth of an argument as surprising. I had the
pleasure of several long conversations with him, and
was struck with admiration at the extraordinary union
of modesty and power, gentleness and force, which his
mind displays. What he knows he communicates
without reserve ; he speaks with a clearness of expres
sion, and in a tone of simple truth, which compel con
viction ; and on all subjects on which his knowledge
is not certain, or which admit of doubt or argument,
he delivers his opinion with a candid diffidence, and
with a deference for that of others, amounting almost
to timidity : still, it is a timidity which would disarm
the most violent opponent, and win respect and cre
dence from any auditor. I remember having often
observed a similar characteristic attributed to the im
mortal Newton. The simplicity of his character is
not more singular than that of his life; pride, ostenta
tion, and hypocrisy are " Greek to him ;" and he
really lives up to the letter and spirit of republican
ism, while he maintains all the dignity due to his age
and office.
' His house is small, and more humble in appear
ance than those of the average of successful lawyers
or merchants. I called three times upon him ; there
is no bell to the door : once I turned the handle of it,
and walked in unannounced; on the other two occa
sions he had seen me coming, and had lifted the latch
and received me at the door, although he was at the
time suffering from some severe contusions received in
the stage while travelling on that road from Frede
ricksburgh to Richmond, which I have before de
scribed. I verily believe there is not a particle of
vanity in his composition, unless it be of that venial
and hospitable nature which induces him to pride him-

544 LIFE OF JOHN MARSHALL.
self on giving to his friends the best glass of Madeira
in Virginia. In short, blending, as he does, the sim
plicity of a child and the plainness of a republican
with the learning and ability of a lawyer, the venera
ble dignity of his appearance would not suffer in com
parison with that of the most respected and distin
guished-looking peer in the British House of Lords.' '
This absence of vanity, this childlike simplicity,
this unpretending manner, that distinguished Mar
shall, and which every one remarked, often induced a
feeling of disappointment on a first introduction to
him. He used no tricks ' to maintain the credit of
his sufficiency ;" and never talked to display his know
ledge or ability, or 'to get opinion,' as Bacon expresses
it. There was an utter unconsciousness of self in his
manner; all was simple, natural, and unaffected. He
presiimed nothing upon his age or station, and his
ordinary conversation, though agreeable, sensible, and
suitable to the occasion, did not betoken the depth of
his mind. It was only in the company of his intimate
friends, and when the conversation was directed to
some subject that elicited discussion, that the powers
of his mind were displayed. The following anecdote
may be cited as an example : —
' Mr. Dexter,' says Judge Story, ' was once in com
pany with Fisher Ames and Chief Justice Marshall.
The latter commenced a conversation, or rather an
opinion (for he was almost solus in the dialogue),
which lasted some three hours. On breaking up, the
' Travels in North America, by the Honorable Charles Augustus
Murray, vol. i., p. 158. Murray, by the bye, was a grandson of
Lord Dunmore.

CONCLUSION, 545
two former commenced, on their way homeward,
praising the depth and learning of their noble host!
Said Ames, after a short talk, "to confess the truth,
Dexter, I have not understood a word of his argument
for half an hour." "And I," good-humoredly rejoined
Dexter, " have been out of my depth for an hour and
a half,"" The Chief Justice fearing the effects of age upon
his mind, and anxious that, ' in life's last scenes,' he
might not exhibit another instance of the ' foUies of
the wise,' had charged his confidential friends to let
him know whenever they perceived the slightest abate
ment in his intellectual vigor, and he would at once
retire from the Bench, But they never had occasion
to perform that delicate office. His intellect remained
unclouded and undimmed to the last moment. At the
session of the Supreme Court, however, in the winter
of 1835, it was apparent that his health was rapidly
declining. His complaints were very much aggra
vated by the injuries received while travelling in the
stage between Fredericksburgh and Richmond, on his
return home at the close of the term. He suffered
great pain through the spring; but, early in June, ex
perienced a delusive interval of convalescence. It did
not last long, and, at the earnest solicitation of friends,
he revisited Philadelphia to seek that relief which the
medical skill of that city bad formerly afforded him.
He was accompanied by three of his sons,^ and through-
' Story's Life and Letters, vol. ii., p. 404.
" His eldest son, Mr. Thomas Marshall, who was ' highly esteemed
for his talents, his many virtues, and his exemplary and useful life,'
was killed at Baltimore by the fall of a chimney, while on his way to
attend the death-bed of his father. He died June 28th. This melan
choly calamity was considerately concealed from the dying parent.
Vol, II, — 35

546 LIFE OF JOHN MARSHALL,
out his illness had every consolation from filial atten
tion, and from the kindness and attention of his nume
rous friends at Philadelphia, who manifested the deepest
interest in his situation, and did all in their power to
alleviate it. But it was evident, from the moment of
his arrival in the city, that the sands of his life had
nearly run out. The cause of his death was a very
diseased condition of the liver, which was enormously
enlarged, and contained several tuberculous abscesses
of great size ; its pressure upon the stomach had the
effect of dislodging this organ from its natural situa
tion, and compressing it in such a manner, that, for
some time previous to his death, it would not retain
the smallest quantity of nutriment,' He was conscious
of his approaching end, and viewed it with perfect
composure. Two days before his death, and in full
view of it, with a modesty characteristic of himself, he
wrote the following inscription for his monumental
tablet: — 'John MarshaU, son of Thomas and Mary
Marshall, wag born on the 24th of September, 1755,
intermarried with Mary Willis Ambler the 3d of
January, 1783, departed this life the  day of  ,
18—,' He expired without a struggle, on Monday, the 6th
of July, 1835, about six o'clock in the evening. The
news of his death elicited everywhere manifestations
of sorrow and respect. The citizens of Philadelphia
assembled in town meeting to express their senti
ments on the occasion. The venerable Bishop White,
then in the 88th year of his age, presided. Suitable
resolutions were adopted, and the whole proceedings
evinced the respect and reverence with which his
character was regarded.

' Randolph's Memoir of Dr. Physick, p, 101,

CONCLUSION, 547
His remains were conveyed to Richmond, accompa
nied by a committee of the Philadelphia Bar, On
their arrival at that place they were met by an im^
posing procession composed of the mUitary, the Ma
sonic brethren, the civil authorities, and citizens, and
escorted to his residence, where the funeral service
was performed by the Right Reverend Bishop Moore,
in a most fervent and feeling manner. He was buried
near the ashes of his wife, in what was called the
New Burying-ground, It is said that his statue,
representing Justice, will occupy one of the six pedes
tals that surround the main column of the Washing
ton Monument now being erected in the Capitol
square at Richmond, Certainly nothing could be
more appropriate.
Judge Marshall was a sincere friend to religion, and
a constant attendant upon its ministrations. Brought
up in the Episcopal Church, he adhered to it through
life, though not until a short time before his death a
believer in its fundamental doctrines,
' I often visited,' says the Rev. Mr. Norwood, ' Mrs.
General Harvey during her last sickness. From her
I received this statement. She was much with her
father [Judge Marshall] during the last months of his
Ufe, and told me that the reason why he never com
muned was, that he was a Unitarian in opinion,
though be never joined their society. He told her
that he believed in the truth of the Christian revela
tion, but not in the divinity of Christ ; therefore he
could not commune in the Episcopal Church, But,
during the last months of his life, he read Keith
on Prophecy, where our Saviour' s divinity is inci
dentally treated, and was convinced by his work, and
the fuller investigation to which it led, of the supreme

548 LIFE OF JOHN MARSHALL.
divinity of the Saviour, He determined to apply for
admission to the communion of our Church — objected
to communion in private, because he thought it his
duty to make a public confession of the Saviour; and,
while waiting for improved health to enable him to go
to the Church for that purpose, he grew worse, and
died, without ever communing, Mrs, Harvey was a
lady of the strictest probity, the most humble piety,
and of a clear, discriminating mind; and her state
ment, the substance of which I give you accurately
(having reduced it to writing), may be entirely re
lied on,
I remember to have heard Bishop Moore repeat
edly express his surprise (when speaking of Judge
Marshall), that, though he was so punctual in his
attendance at church, and reproved Mr.  , and Mr,
 , and Mr.  , when they were absent, and knelt
during the prayers and responded fervently, yet he
never communed. The reason was that he gave to his
daughter, Mrs. Harvey, She said he died an humble,
penitent believer in Christ, according to the orthodox
creed of the Church. . . .
'P. S. — Another fact, illustrating the lasting influ
ence of maternal instruction, was mentioned by Mrs.
Harvey. Her father told her that he never went to
bed without concluding his prayers with those which
his mother taught him when a child, viz., the Lord's
Prayer, and the prayer beginning, " Now I la.y me
down to sleep," ' '
I can never forget,' says Bishop Meade, ' how he
would prostrate his tall form before the rude low
' Old Churches and Families of Virginia, vol. ii., p. 223, note.
Letter from Rev. William Norwood to Bishop Meade,

CONCLUSION. 549
benches without backs, at Cool Spring Meeting-house,
in the midst of his children, and grandchildren, and
his old neighbors. In Richmond he always set an ex
ample to the gentlemen of the same conformity, though
many of them did not follow it. At the building of
the Monumental Church he was much incommoded by
the narrowness of the pews, which partook too much
of the modern fashion. Not finding room for his whole
body within the pew, he used to take his seat nearest
the door of his pew, and throwing it open, let his legs
stretch a little into the aisle.' '
He not only conformed to the ceremonies of religion,
but his whole life evinced virtuous principles and affec
tions. ' He had no frays in his 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 kind
ness 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 rela
tions who has had the happiness of a personal associa
tion 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.' ' In private life he was up-
rio-bt and scrupulously j ust in all his transactions. His
friendships were ardent, sincere, and constant — his
charity and benevolence unbounded. He was fond

' Old Churches and Families of Virginia, vol. ii., p. 221, note.

550 LIFE OF JOHN MARSHALL.
of society, and, in the social circle, cheerful and unas
suming. He participated freely in conversation, but,
from modesty, rather followed than led. Magnani
mous and forgiving, he never bore malice, of which
illustrious instances might be given. A republican
from feeling and judgment, he loved equality, abhorred
all distinctions founded upon rank instead of merit,
and had no preference for the rich over the poor. Re
ligious from sentiment and reflection, he was a Chris
tian, believed in the Gospel, and practised its tenets.' '
Such was John Marshall in his youth and in his
age. We need add no more. The circle is complete.
We have recorded his services, and furnished the
evidence of his virtues.
' The testimony of a kinsman and of a friend. Vide, Binney's
Eulogy on John Marshall, p. 68.

INDEX.

Adams, John, vol. i. 44, 45, 70, 76-80,
82, 83, 85, 86, 87, 88-90, 92, 95,
102, 109, 113, 120, 138, 141, 142,
143, 151, 152, 163, 201, 232, 234,
247, 280, 281, 287, 290, 326, 329,
336, 337, 341, 345-348, 350, 369,
372, 401, 403, 404, 411, 412, 414,
419, 452, 481, 483, 489, 490, 493,
494, 508, 509-613, 519, 520, 521,
524, 528, 533, 619, 621; vol. ii.
13, 14, 15, 19-22, 26, 28, 61, 73,
96, 104, 106, 129, 162, 177, 182,
183, 214, 218-236, 355, 384, 395-
398, 400, 403, 407, 408, 437.
Adams, Col., vol. ii. 410.
Adams v. Kellogg, vol. ii. 123.
Adams, Samuel, vol. i, 80, 113, 136,
151, 476, 520, 521 ; vol. ii. 35.
Addison, Judge, vol. ii. 193.
Alexander, James, vol. i. 31.
Alsop, John, vol. i. 60, 72, 74, 78.
Ambler, Jacqueline, vol. ii. 322, 516.
Ambler, Mary Willis, vol. ii. 322, 516,
546.
Ames, Fisher, vol. i. 382, 383, 401-
603, 411, 413; vol. ii. 66, 180, 182,
351, 390, 544, 545.
Andrews, Rev. Mr. vol. i. 436.
Arbuthnot, Admiral, vol. ii. 96.
Armstrong, General John, vol. i. 637.
Arnold, Benedict, vol. i. 230, 312;
Tol. ii. 300.
Ash, Gen., vol. i. 555, 551
Ashburton, Lord, see Dunning.
Auohmuty, Robert, vol. i. 71, 481.
B.'VOHE, Theophilaot, vol. i. 59.
Bailey, Jacob, vol. ii. 16.

Baker, John, vol. ii. 309, 426,
Ball, Col., vol. ii. 297.
Barbour, P. P., vol. ii. 502.
Barclay, Thos. vol. i. 358.
Barlow, Joel, vol. ii. 479.
Barras, Count de, vol. ii. 226, 231.
Barry, John, vol. ii. 226, 238.
Barthelimie, Wm. Abbe, vol. ii. 489.
Bay, Judge, vol. i. 477.
Bayard, Ann Maria, vol. 16.
Bayard, Balthazar, vol. i. 16.
Beaumarchais, M., vol. i. 153; vol. ii,
365.
Bee, Thos., vol. i. 495, 504, 526.
Bellamy, Dr. Joseph, vol. ii. 57.
Bellamy, M., vol. ii. 358-382.
Benson, Egbert, vol. i. 187, 210, 219,
237, 322, 323, 357.
Benson, Robert, vol. i. 206.
Binney, Horace, vol. ii. 412, 414, 472.
Blair, Archibald, vol. ii. 387.
Blair, John, vol. i. 621 ; vol. ii. 37.
Blair, J..D., vol. ii. 518.
Bland, Richard, vol. i. 91, 312.
Blennerhassett, Hermann, vol. ii. 426,
426, 432.
Bollman, Eric, vol. ii. 422, 423-425.
Bonaparte, Joseph, vol. ii. 240, 254,
256.
Boone, Gov., vol. i. 452, 453-455.
Botts, Benjamin, vol. ii. 426.
Bowen, Francis, vol. i. 562.
Bradford, William, vol. ii. 351.
Brant, Joseph, vol. i. 227.
Brasher, Abraham, vol. i 67, 175.
Brewton, Miles, vol. i. 471, 473, 474,
Broome, John, vol. i. 67, 203.
Brougham, Lord, vol. i. 405, 641,
(551)

552

INDEX.

Brown, William, vol. ii. 21.
Brown v. Barry, vol. ii. 208.
Brown v. Maryland, vol. ii. 462.
Buchanan, J., vol. ii. 618.
Buford, Col., vol. i. p. 670.
Bull, Lieutenant-Governor William, vol.
i. 455, 457, 474, 496.
Bull, John, vol. ii. 117.
Bullock, Archibald, vol. i. 614,520,521.
Burgoyne, John, vol. i. 223, 230, 232,
236, 237 ; vol. ii. 537, 539.
Burke, Edmund, vol. i. 66, 117, 186,
389, 440, 468 ; vol. ii. 66, 71.
Burr, Aaron, vol. i. 398; vol. ii. 183,
233, 264, 298, 405, 414, 419-427,
432, 433,
Bute, Lord, vol. i. 456, 511.
Butler, Benjamin F., vol. ii. 473
Butler, Pierce, vol. i. 602.
Butler, Rev. Mr. vol. ii. 460.
Butler, Walter, vol. i. 227.
Byrd, William, vol. i. 543.
Cabakrus, M,, vol. i. 320, 322.
Cabot, George, vol. ii. 170, 182, 351,
381.
Caldwell, vol. ii. 31,
Calhoun, John C, vol. ii. 128.
Call, Daniel, vol. ii, 517.
Cambaceres, M., vol. ii. 255.
Cambray, Col., vol. i. 561.
Camden, Lord, vol. i. 48, 335, 440,
441,
Campbell, Alexander, vol. ii. 308, 310,
311.
Campbell, Rev. Mr. vol. ii. 283.
Campbell, Col., vol, i. 553, 554.
Campbell, Dougall, vol. i. 464.
Campo, M. del, vol. i. 315, 306, 318,
319, 321, 322, 352.
Cantine, Matthew, vol. i. 223.
Carleton, Sir Guy, vol. i. 334, 592 ;
vol. ii. 102, 104, 105, 107.
Carmichael, William, vol. i. 281, 289,
304, 305, 321, 326, 327, 358.
Carr, Dabney, vol. ii. 457.
Carrington, Edward, vol. i. 365, 516.
Carrington, Mrs. Edward, vol. ii.
536.

Chase, Samuel, vol. i. 476, 486, 487,
494, 516, 517-520, 521 ; vol. ii. 187,
188, 226.
Chatham, Lord, vol. i. 48, 117, 122,
439, 441, 468, 490-492.
Chesterfield, Lord, vol. ii. 66, 409.
Chevallie, John A., vol. ii. 365.
Chisholm v. Georgia, vol. i. 386 ; vol.
ii. 38, 344.
Cicero, vol. i. 117.
Clark V. Russell, vol. ii. 208,
Clay, Henry, vol. ii. 473,
Clinton, De Witt, vol. i. 422.
Clinton, George, vol. i. 182, 203, 241,
263, 264, 283, 380, 394-396, 398,
400, 415, 421.
Clinton, Sir Henry, vol. i. 538, 641,
642, 653, 667, 568, 570, 571, 679;
vol. ii. 95, 299.
Clymer, George, vol. i. 591; vol. ii.
322.
Cohens v. Virginia, vol. ii. 453.
Colbert, John Baptist, vol. i. 11.
Colden, Cadwalader, vol. i. 42, 51, 53,
60, 70, 75, 76, 123, 131.
Cooper, Dr. Myles, vol. i. 29.
Cooper, Samuel, vol. i. 86.
Cornwallis, Lord, vol. i. 568, 571, 577,
591-593 ; vol. ii. 99, 300.
Coste, Rev. Mr., vol. i. 630.
Cotton, Josiah, vol. ii. 12, 14,
Couteulx, Le & Co., vol. i. 288.
Craig V. Missouri, vol. ii. 464.
Cumberland, Richard, vol. i. 291-301,
305.
Curran, John Philpot, vol. i. 42.
Cushing, Daniel, vol. ii. 11.
Cushing, Deborah, vol. ii. 11.
Cushing, Jeremiah, vol. ii. 11.
Cushing, John 1st, vol. ii. 11.
Cushing, John 2d, vol. ii. 12.
Cushing, John 3d, vol. ii. 12-14, 1.5,
18, 19.
Cushing, Mary, vol. ii. 14, 15.
Cushing, M.atthew, vol. ii. 11.
Cushing, Thomas, vol. i. 85; vol. ii
19, 25.
Cushing, William, vol. i. 621 ; vol. ii.
197, 226, 228, 408.

INDEX.

553

Cushing, Mrs. William, vol. ii. 18, 38,
50.
Cuyler, Jacob, vol. i. 222.
Dallas, Alexander J., vol. ii. 434.
Damas, Madame de, vol. i. 293.
Dana, Francis, vol. ii. 51, 96, 102,
112, 354.
Danton, vol. i. 168.
D'Aranda, Count, vol. i. 319, 352, 353,
364.
D'Arblay, Madame, vol. i. 117.
Dartmouth College, The Case of, vol.
ii, 444.
Dartmouth, Earl of, vol. i. 60, 75, 123,
475, 496 ; vol. ii. 23, 24.
Davie, William R., vol, ii. 224, 228,
229, 232, 233, 237, 249, 257.
Deane, Rev. Samuel, vol. ii. 28, 46,
47.
Deane, Silas, vol. i. 155, 158, 244-
253, 483, 515.
De Corney, Mons., vol. ii. 93.
D'Estaing, Count, vol. i. 298, 300, 666,
566.
De Grimaldi, The Marquis, vol. i. 277.
De Lancey, James, Chief Justice, vol.
i. 249, 466, 466.
De Lancey, John, vol. i. 69.
Demosthenes, vol, i. 117, 492.
De Vergennes, Comte, vol. i. 245, 248,
280, 287, 306, 309, 310, 331-333,
336, 338-345, 362, 364; vol. ii. 106.
De Witt, Charles, vol, i, 203, 222.
Dexter, Samuel, vol. ii. 351, 403, 413,
544, 545.
Dickson, Lieutenant-Colonel, vol. ii.
80.
Dickinson, John, vol. i. 82, 116, 119,
137-141, 142, 149, 150, 151, 479,
480, 490, 509, 511, 512, 513; vol.
ii. 113.
Dorchester, Lord, vol. i. 634.
Dorset, Duke, vol. i. 298.
Drake, Col,, vol. i. 180.
Drayton, William Henry, vol. i. 605,
548.
Duane, James, vol. i. 66, 59, 60, 71,
78, 79, 82, 92, 93, 107, 136, 142,

144, 168, 203, 205, 236, 253, 376,
481, 493, 512.
Duchg, Jacob, vol. i. 85, 86.
Duer, William, vol. i. 202.
Dumas, C. W. F., vol. i. 163 ; vol. ii
110.
Dunmore, Lord, vol. i. 166; vol. ii
287, 291, 292, 293.
Dunning, John, vol. i. 449, 450.
Duponceau, Peter S., vol. ii. 414.
Dutrimond, M., vol. ii. 369.
Duyckinck, Sampson, vol. i. 179.
Dwight, Timothy, vol. ii. 66 274
276.
Dyer, Eliphalet, vol. i. 479, 483, 494,
619; vol. ii. 102, 104, 106, 109.
D'Yranda, Count, vol. i. 289, 312.
Edwards, John, vol. i. 562.
Eldon, Lord, vol. i. 35, 36, 37, 46,
447, 450; vol. ii. 261, 413.
Ellsworth, David, vol. ii. 56, 57, 61.
Ellsworth, Jemimah, vol. ii. 57.
Ellsworth, Josiah, vol. ii. 65, 56.'
Ellsworth, John, vol. ii. 55, 56.
Ellsworth, Oliver, vol. i. 267, 407, 604,
609, 639; vol. ii. 51, 223.
Ellsworth, Oliver, Jr., vol. ii. 254,
257, 268.
Ely, Col. John, vol. ii. 76, 183.
Emmett, Thomas Addis, vol. ii. 414
434, 451.
Erskine, Thomas, vol. i. 38, 447 ; vol.
ii. 261.
Everett, Edward, vol. i. 37.
Ex parte Swartwout and Bollman, vol.
ii. 427, 428.
Falconer, Sir Anthony, vol. i. 538,
641.
Ferguson, Mr., vol. i, 562.
Few, Mr., vol. i. 365
Finley, Samuel, vol. ii. 58.
Fisher, George, vol. ii. 517.
Fitzgerald, vol. ii. 15.
Fitzherbert, AUeyn, vide Lord St.
Helen's.
Fletcher v. Peck, vol. ii. 440.
Fleurieu, M., vol. ii. 240.

554

INDEX.

Florida Blanca, Count de, vol. i. 289,
290, 291, 294, 295, 297-325.
Fordyce, Capt. vol. ii. 293.
Fox, Charles James, vol. i. 117, 831,
336, 338, 354; vol. ii. 104, 109-111,
412,
Frank, Miss, vol. i. 39.
Franklin, Benjamin, vol. i. 29, 101,
140, 144, 149, 151, 152, 153, 244,
245, 247, 248, 249, 260, 258, 276,
277, 278, 280, 282, 288, 291, 292,
294, 309, 310, 813, 318, 319, 322-
324, 328, 329-335, 340, 344-350,
355, 360, 469, 489, 506, 508, 516,
603, 607, 611 ; vol. ii. Ill, 115, 127,
133, 164, 255.
Franklin, William, vol. i. 149.
Franjois, Mons. vol. i. 13.
Fraser, Charles, vol. i. 445, 449, 465.
Fulton, Robert, vol. ii. 456.
Gadsden, Christopher, vol. i. 91,
146, 453, 454, 458, 459, 460, 467,
474, 475, 476, 479, 480, 482, 483,
486, 487, 495, 503, 504, 509, 519,
620, 524, 525, 526, 562, 569, 630,
633.
¦ Gage, Thomas, vol. i. 495, 508 : vol.
ii. 23, 24.
Gallatin, Albert, vol. ii. 397.
Galloway, Joseph, vol. i. 82, 93, 100-
108, 109, 110, 481, 489, 490, 493,
494.
Galvez, M. vol. i. 289, 301.
Gansevoort, Leonard, vol. i. 205, 221,
230,
Gardoqui, Don Diego, vol. i. 277, 278,
304-306, 308, 361, 362.
Gamier, M. vol. i. 248.
Garrick, David, vol. i. 440, 441.
Garrow, William, vol. ii. 260, 261,
262.
Gates, Horatio, vol. i. 234, 236, 273,
311, 544, 554, 573, 574, 592, 593 ;
vol. ii. 95.
Genet, M., vol. i. 390; vol. ii. 167,
168, 211.
Georgia v. Brailsford, vol. i. 392; vol.
ii. 199,

Gerard, M., vol. i. 279, 280, 282, 288-
288, 326, 329.
Gerry, Elbridge, vol. i. 375, 621 ; vol,
ii. 224, 355-382.
Gervais, John Lewis, vol. i, 569.
Gibbon, Edward, vol. ii. 489.
Gibbons v. Ogden, vol. ii. 417, 466.
Giles, William B., vol. ii. 432, 601.
Gilmer, Francis W., vol. ii. 310,
Goldsmith, Oliver, vol. ii. 57.
Goodrich, Chauncey, vol. ii. 638; vol.
ii. 169, 180.
Gordon, Lord George, vol. i. 299.
Gordon, William, vol. i. 508.
Grand, Ferdinand, vol. i. 248,
Grasse, Count de, vol. i. 357,
Grattan, Henry, vol. i. 641.
Gray, Gen., vol. ii. 105.
Grayson, William, vol. ii. 328, 347.
Greene, Nathaniel, vol. i. 574-577, 681.
Grenville, George, vol. i. 331, 405, 455,
456.
Grenville, Lord, vol. i. 405, 408, 634 ;
vol. ii. 259.
Grenville, Thomas, vol. i. 331, 336,
405, 406.
Gridley, Jeremiah, vol. i. 46 ; vol. ii,
15, 16.
GrifBn, Judge, vol. ii. 308.
Grimk^, Judge, vol. i. 444.
Grimk^, Miss Elizabeth, vol. i. -^51,
Griswold, Roger, vol. ii. 59, 180.
Grose, Judge, vol. ii. 260, 261.
Gunn, James, vol. ii. 180.
Haley, John, vol. i. 465, 466.
Hallett, Joseph, vol, i, 67, 130.
Hamilton, Alexander, vol. i. 62-67,
130, 236, 360, 376, 376, 378, 385,
389, 402, 403, 408, 413, 420, 565,
598, 619, 620, 637, 641 ; vol. ii. 71,
101, 128, 134, 161, 164, 170, 182,
214, 218-220, 224, 231, 232, 244,
245, 264, 298, 311, 351, 405, 420.
Hammond, George, vol. i. 392, 402.
Hancock, John, vol. i. 255 ; vol. ii. 36,
36.
Harper, Robert, vol. i. 222.
Harper, Robert G., vol. ii. 414, 416,

INDEX.

555

Harrison, Benjamin, vol. i. 115, 119,
140, 151, 236, 242, 480, 520, 521,
621.
Harrison, Robert, vol. i. 621; vol. ii. 37.
Hart V. Smith, Vol. ii. 121.
Hartley, David, vol. i. 354; vol. ii.
Ill, 115.
Harvey, Mrs. vol. ii. 547, 548.
Hastings, Warren, vol. i. 117.
Hautville, M., vol. ii. 362-382.
Hay, George, vol. ii. 426.
Helen's, Lord St., vol. i. 336, 337,
342, 343, 347, 348, 356.
Henfield, Gideon, vol. i. 390.
Henry, Patrick,vol. i. 44, 88, 89, 90, 91,
109, 115, 116, 367, 462, 476, 477,
489, 490, 493, 494 ; vol. ii. 223, 224,
308-310, 328, 330, 332, 337, 340,
346, 387, 388.
Herkimer, General, vol. i. 226, 227.
Heyward, Thomas, vol. i. 523, 526.
Hillhouse, vol. i. 620.
Hobby V. Finch, vol. ii. 120.
Hobart, John Sloss, vol. i. 175, 202,
222, 223, 416.
Hoffman, Josiah Ogden,vol. ii. 414,434.
Holmes, vol. ii. 444.
Holton, Dr., vol. ii. 102.
Hooper, Willi.ara, vol. i. 88, 493, 520,
521.
Hopkins, J. D., vol. ii. 29.
Hopkinson, Francis, vol. ii. 414, 444,
450.
Hopkinson, Joseph, vol. ii. 180.
Horry, Gen., vol. i. 546, 574, 583.
Horsmander, Daniel, Chief Justice, vol,
i. 42; vol. ii. 180.
Hottinguer, M., vol. ii. 866-382.
Houston, John, vol. i. 614, 517, 620.
Howe, Sir William, vol. i. 173, 188,
198, 643, 544; vol. ii. 299.
Hext, Sarah, vol. i. 433.
Huger, Daniel, vol. i. 569.
Hughes, Hugh, vol. i. 201.
Hume, David, vol. ii. 410, 489, 525.
Huntington, The Countess, vol. ii. 309,
310.
Huntington, Samuel, vol. ii. 105, 112,
115, 176.

Hutchinson, Thomas, vol. ii. 18, 22.
Hutson, Richard, vol. i. 599.
Ingersoll, Jaked, vol. ii. 187, 414.
Innis, James, vol. ii. 309, 328.
Iredell, Judge, vol. i. 414 ; vol. ii. 308,
309, 310.
Izard, Ralph, vol. i. 249, 250, 287,
466.
Jackson, Andrew, vol. ii. 532.
Jackson, William, vol. ii. 487, 488,
490.
Jacob, Nicholns, vol. ii. 11.
Jay, Augustus, vol. i. 13, 15, 16, 17.
Jay, Frederick, vol. i. 357.
Jay, John, vol. i. 482, 486, 490, 494,
512, 515, 596, 606, 632-637; vol. ii.
46, 104, 106, 170, 172, 261, 308,
408, 497.
Jay, Nancy, vol. i. 367.
Jay, Peter, vol. i. 17, 18, 19, 22,
357.
Jay, Pierre, vol. i. 11, 12, 13, 14.
Jay, William, vol. i. 219.
Jefferson, Thomas, vol. i. 28, 84, 118,
120-140, 162, 243, 329, 365, 366,
368, 372, 373, 383, 404, 513; vol.
ii. 169, 176-178, 182, 250, 259, 262,
264, 332, 381, 382, 405, 406, 414,
420, 437, 438, 479, 496, 497, 508.
Jenifer, vol. i. 544; vol, ii. 91.
Jenkinson, Charles, vol i. 456.
Jennison, Nathaniel, vol. ii. 31.
Johnson, Capt., vol. ii. 296.
Johnson v. M'Intosh, vol. ii. 455,
Johnson, vol. i. 575.
Johnson, Joseph, vol. i. 463, 463.
Johnson, Dr. Samuel, vol. i. 103, 440,
440, 449 ; vol. ii. 391, 410.
Johnson, Thomas, vol. i. 140, 142, 144,
146, 151, 490, 493, 512, 515.
Johnson, William Samuel, vol. ii. 66,
67, 129, 136, 137, 156, 159,
Jones, Hugh, vol. ii. 302.
Jones, Samuel, vol. ii. 33.
Jones, Walter, vol. ii. 450.
Joyce, Messrs. vol. i. 302-304.

556

INDEX.

Kalb, Baron De, vol. i. 573.
Keith,. Mary, vol. ii. 281, 282.
Kemble, Miss Fanny, vol. ii. 539.
Kempe, John Tabor, vol. i. 31,
Kendall, Dr. James, vol. ii, 29,
Kent, James, vol. i. 221, 231, 236,
378 ; vol. ii. 414.
Kenyon, Lord, vol. ii. 260.
Keppel, Admiral, vol. i. 447.
Kettletas, Rev. Abraham, vol. i. 208.
King, Rufus, vol. i. 221, 369, 375,
398: vol. ii. 133, 170, 182, 258,
260, 261, 262, 264, 266, 361, 404,
629.
Kinloch, Francis, vol. i. 656, 643.
Kirby's Reports, vol. ii. 119.
Kissam, Benjamin, vol. i, 31, 32, 33,
39, 42, 45, 130, 131.
Knox, vol. i. 456.
Knox, Henry, vol. i. 52 ; vol. ii. 219,
Lamb, John, vol, i, 53, 130.
Langdon, John, vol. i. 519, 633,
Lansing, Mr., vol. i. 375, 380.
Lardner, Dr. vol. ii. 272.
Laurens, Henry, vol. i. 253, 256, 304,
310, 329, 335, 348, 349, 463, 526,
591, 592, 643; vol. ii. 84, 96, 111.
Laurens, John, vol. i. 348, 658, 561,
563, 565.
La Vengeance, vol. ii. 208.
Law, Edward, vol. ii. 160.
Law, Edward, vol. ii. 261,
Law, Richard, vol, ii. 96, 160, 168.
Lafayette, Marquis de, vol. i. 280, 287,
290, 291, 352, 360, 362.
Leavitt, Jemimah, vol. ii. 56.
Leavitt, Mr., vol. ii. 273.
Le Blanc, Judge, vol. ii. 260.
Lee, Arthur, vol. i. 114, 153, 244, 245,
247, 248, 249, 250, 252, 276^ 277,'
278, 279, 280, 281, 287, 476.
Lee, Charles, vol. i, 90, 159, 538-
544.
Lee, Charles, vol. ii. 226, 400, 402
426.
Lee, Henry, vol. i. 564, 565, 563, 566,
568; vol. ii. 299, 390, 394.

Lee, Richard Henry, vol. i. 88, 91, 97,
100, 108, 110, 113, 114, 115, 116,
117, 118, 119, 120, 146, 151, 162,
252, 476, 480, 487, 489, 490, 493,
512, 516, 519, 692; vol. ii. 347.
Leigh, B, Walkins, vol. ii. 416, 602,
613.
Leslie, General, vol. ii. 299, 300.
Lewis, Ben., vol. i. 326.
Lewis, Francis, vol. i. 62, 67.
Lewis, William, vol. ii. 311,
Liancourt, Duke de, vol, ii. 188, 316,
317, 318.
Lincoln, Benjamin, vol. i. 564, 556-
559, 563-566, 568, 569; vol. ii, 79,
81, 84, 88, 96, 98.
Lisle, Col, vol. i. 671.
Lispenard, Leonard, vol. i. 67, 130.
Littlepage, Lewis, vol. i. 326-328.
Livermore, Arthur, vol. ii. 159.
Liverpool, Earl, see Jenkinson.
Livingston, Brockholst, vol. i. 282,
'26; vol. ii. 381.
Livingston, Miss Kitty, vol. i. 358,
Livingston, Peter R., vol. i. 221.
Livingston, Philip, vol. i. 69, 60, 71,-
74, 78, 79, 173, 461, 479, 517.
Livingston, P. V. B., vol. i. 59, 67
130.
Livingston, Robt. R., vol. i. 41, 146,
147, 169, 198, 208, 206, 209*, 219
220, 222, 237. 270, 271, 367, 369,
360, 376, 396, 397, 418 ; vol, ii 98
456,
Livingston, William, vol, i. 31, 46,
no, U3, 114, 115, 119, 120,' 143,"
158, 480.
Lockwood, Major, vol. i. 180,
Loring, Deborah, vol. ii. 12.
Lott, Abraham P., vol. i. 67.
Loughborough, Lord, see Weddeburn,
Lovell, James, vol. 1. 311.
Low, Isaac, vol. i, 66, 89, 60, 72, 74
78, 104, 128.
Lowndes, Rawlins, vol. i. 472 473
603, 522, 523, 626, 552, 655, 6I3'
615. '
Luzerne, M. d^ la, vol. i. 281, 329
330, 342. '
Lynde, Judge, vol. ii. 13,

INDEX.

557

Lynch, Thomas, vol. i. 91, 158, 458,
460, 467, 474, 479, 480, 481, 482,
487, 503, 504, 509, 523.
Lynch, Thomas, Jr., vol. i. 626.
Madison, James, vol. i. 312, 328, 346,
367, 372, 378, 593-596, 604, 607 ;
vol. ii. 101, 127, 133, 134, 169, 171,
214, 233, 328, 346, 881, 437, 479,
600, 601, 541.
Madison, Bishop, vol. ii. 301.
Mahon, Lprd, vol. i. 254, 338, 357, 581.
Maitland, Colonel, vol, i. 564, 566.
Manchester, Duke of, vol. i. 354.
Mangourit, Consul, vol. i. 629.
Mansfield, Lord, vol. i. 34, 439, 441,
447, 506, 511 ; vol. ii. 413.
Marbois, M., vol. i, 339-344, 362, 696.
Marbury v. M.idison, vol. ii. 437.
Markham, Elizabeth, vol. ii. 279.
Marion, F. vol. i. 546,572,574,677-585.
Marshall, John, Sr., vol. ii. 279.
Marshall, John, vol. i. 38, 621 ; vol. ii.
186, 193, 197, 216.
Marshall, Mrs. J.,vol. ii. 322, 516, 536.
Marshall, Thomas, vol. ii. 279-282,
284, 286, 288, 290, 298, 536.
Marshall, Thomas, vol. ii. 545.
Martineau, Miss, vol. ii. 478, 540.
Martin, Josiah, vol. i. 146.
Martin; Luther, vol. i. 608; vol. ii.
130, 138, 414, 426, 450.
Mason, George, vol. i. 243,604,609; vol.
ii. 128, 138, 142, 324, 328, 343, 846.
Mason, James S., vol. i. 412,
Matthews, John, vol. i. 588, 599, 633.
Matthews, Major, vol. i. 173.
Mauduit, Israel, vol. i. 456.
Mayo, vol. ii. 399.
Mazzei, Philip, vol. ii. 496.
McCulloch w» Maryland, vol. ii. 449.
McDougall, Alexander, vol. i. 50, 66,
69, 60, 61, 67, 77, 130, 157.
McKean, Thomas, vol. i. 165, 479.
Meade, Bishop, vol. ii. 521, 536, 648.
Mercer, John, vol. i. 597.
Middleton. Arthur, vol. i. 509, 522,
526, 552, 691.
Middleton, Henry, vol. i. 255, 573,
474, 480, 487, 509, 526.
Mifflin, Thomas, vol. i. 81, 480, 494,

Mills, vol. i. 180.
Mirabeau, vol. i. 117.
Mirales, M. vol. i. 283,303,304; vol.ii.87,
M'IIenry,J.vol.ii.400, 401, 402,403,406,
Monroe, James, vol. ii. 212, 213, 279,
284, 333, 352, 500, 501.
Montmorin, Count de, vol. i. 287, 290,
307, 310-312, 316, 310-321, 326,
Moore, Bishop, vol. ii. 547, 548.
Moore, John, vol. i. 72.
Morgan, Colonel John, vol. ii. 75
Morris, A., vol. i. 544.
Morris, Gou., vol. i. 167, 170, 173, 169,
202, 205, 209, 220, 222, 225, 234,
240, 242, 292, 293,336, 397,404, 604 ;
vol. ii. 127, 135, 137-139, 244, 245,
Morris, Lewis, vol. i. 33, 42, 43,
Morris, R. vol. i. 165,197,322,355,359,
602 ; vol. ii. 98, 105, 107, 108, 112,
Morton, John, vol, i, 479,
Motte, vol. i. 546.
Mouohard, Madame, vol. i. 16.
Moultrie, William, vol. i. 539, 540, 541,
543-546, 556, 557-567, 569,576,588.
Mountilorence, vol. ii. 356.
M'Rae, Alexander, vol. ii. 426.
Muhlenberg, Gen. Peter, vol. i. 538.
Mulligan, Hercules, vol. i. 130.
Murray, Lindley, vol. i. 39, 130.
Murray, William Vans, vol. ii. 182,
222, 223, 224, 237, 239, 249.
Napoleon, vol. i. 389; vol. ii. 239,
250, 252, 254, 255, 421.
Nash, Colonel Francis, vol. i. 540.
Nash, Thomas, see Jonathan Robbins.
Neal, Colonel, vol. i, 557.
Neoker, M., vol. i. 307.
Nelson, Thomas, vol. i. 243,
Nereide, The, vol. ii. 434, 436.
Neufville, De, vol. i. 309.
Newton, Isaac, vol. ii. 543.
Nicholas, vol. ii. 415.
Nicholas, George, vol. ii. 328.
Nicholas, John, vol. i. 243,
Nicholas, William, vol. ii. 328.
North, Lord, vol. i. 153, 336, 854;
vol. ii. 104, 109.
Northington, Lord, vol. i. 440.
Norwood, William, vol. ii. 547,

558

INDEX,

Oakly, Chief Justick, vol. ii.414, 4.57.
Ogden, David B., vol. ii. 414.
Ogden V. Saunders, vol. ii. 418.
Oliver, Andrew, vol. ii. 21.
Oliver, Peter, Chief Justice, vol, li. 21,
22, 23, 24.
Olmstead, Gideon, vol. ii. 72, 73.
O'Reilly, Count, vol. i. 289.
Orn, Capt., vol. ii. 266.
Osborn v. V. S. Bank, vol. ii. 460.
Oswald, R., vol. i. 331-335, 337, 338,
348,344,346,347,348; vol.ii.111,115.
Otis, James, vol. i. 35, 44, 46, 452,
458, 460, 462, 463 ; vol. ii. 13.
Otto, M., vol. ii. 265.
Paca, William, vol. i. 493.
Paine, Robert Treat, vol. ii. 19.
Paine, Thomas, vol. i. 624.
Parker, Sir Peter, vol. i. 538, 542.
Parker, Joel, vol. ii. 414.
Parsons, James, vol. i. 437, 439, 467.
Patterson, General, vol. i. 568.
Patterson, Wm. vol. ii. 128,130,159,408.
Peel, Sir Robert, vol. i. 75.
Peloquin, Mr., vol. i. 17, 20.
Pemberton, Israel, vol. i. 509.
Pendleton, E., vol. i. 91, 115, 243, 275.
Penhallow v. Doane, vol. ii. 43.
Penn, Richard, vol. i. 188.
Peters, Richard, vol. ii. 534.
Philipse, Frederick, vol. i. 17,
Phillips, vol. ii. 331, 332.
Phillips, General, vol. ii. 75.
Phillips, Hannah, vol. ii. 18.
Phoebe Ann, The ship, vol. ii. 208.
Physick, Dr. P. S., vol. ii. 533.
Pickens, Andrew, vol. i. 572.
Pickering, Timothy, vol. i. 82, 419; vol.
ii. 193, 225, 226, 228, 229, 230, 233,
247, 248, 249, 379, 400, 402, 403.
Pinckney,C.vol.i.365, 366,467,473,502,
626, 556,569, 602,608, 604, 607,610.
Pinckney, C, C, vol. i. 445, 449, 465,
477, 526, 602, 610, 622; vol. ii
127, 133, 139, 213, 215, 216, 219^
354, 356-382.
Pinckney, Thomas, vol. i. 402, 405
477, 636, 637.
Pinkney, William, vol, ii, 414, 416, 434,
435, 450,

Piuto, Manuel, vol, ii. 434, 436.
Piquet, M. le Motte, vol. i. 286,
Pitcher, Nazareth, vol. ii. 11,
Pitkin, William, vol. ii. 68, 171,
Pitt, see Chatham, Earl.
Pitt, WilUam, vol. i. 370, 389,
Piatt, Zephaniah, vol, i. 222,
Plombard, M., vol. i. 665.
Pollock, Oliver, vol. ii. 110.
Porterfield, Charles, vol. ii. 296,
Porterfield, Robert, vol. ii. 296.
Portland, Duke, of, vol. ii. 111.
Pratt, Charles, see Camden, Earl,
Preston, Capt., vol. ii. 12,
Prevost, General, vol. i. 553, 554, 555,
557-566.
Priestly, Joseph, vol. i. 508 ; vol, ii, 50.
Pringle, Julius, vol, i, 477,
Pulaski, Count, vol. i. 561.
Purcell, Rev. Dr., vol. i. 445.
Putnam, Israel, vol, i. 227,
Quacks, vol. ii, 31.
Quincy, Josiah, Jr., vol. i. 123, 124,
466, 467, 471, 470, 492.
Quincey, Josiah, vol. ii. 51.
Ramsay, David, vol. i. 436, 446, 447,
456, 461, 464, 591, 617.
Randall, Thomas, vol. i. 67, 130.
Randolph, Edmund, vol. i. 366, 695;
vol. ii. 324, 328, 331, 332, 426.
Randolph, J., vol. ii. 291. 502, 507, 510.
Randolph, Dr. J., vol. ii. 634.
Randolph, Peyton, vol. i. 81, 85, 86,
144, 256, 481, 515,
Ravara, vol. i. 392.
Rawle, William, vol. ii. 414.
Raymond, Sir Thomas, vol. ii. 44.
Rayneval, M. de, vol. i. 338-343, 353,
Reed, Joseph, vol. i. 223,
Remsen, Henry, vol, i. 72, 170.
Reynolds, vol. i. 447.
Rex V. Waddington, vol. ii. 260.
Rhind, David, vol. i. 436.
Rivington, James, vol. i. 52, 156, 487.
Robbins, Jonathan, vol. ii, 396-898.
Robespierre, vol. ii. 168.
Roche, The Chevalier, vol. i. 288.
Rochford, Lord, vol. i. 153.
Rockingham, Lord, vol. i. 336,
Rodney, Caesar, vol, i. 462, 479, 481,

INDEX.

559

Roederer, M., vol. ii. 240, 256.
Ronald, Andrew, vol. ii. 309.
Root, Judge, vol. ii. 59.
Ropes, Judge, vol. ii. 21, 22.
Rose V. Himely, vol. ii. 434.
Rutledge, Andrew, vol. i. 433.
Rutledge, Edward, vol. i. 82, 85, 163,
174, 196, 197-199, 202, 474, 481,
486, 489, 490, 494, 495, 496, 504,
609, 516, 523, 622, 639.
Rutledge, John, vol. i. 46, 91, 119,
140, 142, 144 ; vol. ii. 37, 46, 100,
135, 136, 175, 176, 322.
Rutledge, John, Sr., vol. i. 433, 435.
Salvador, vol. i. 548.
Sarsfield, Count, vol. i. 362.
Sehenck, vol. i. 180.
Schuyler, Hon. Yost, vol. i. 230.
Schuyler, Philip, vol. i. 201, 225, 230
-236, 264, 271.
Scott, John, see Eldon.
Scott, John Morin, vol. i. 31, 59, 60, 70,
71, 77, 78, 130, 131, 167, 203, 222.
Sears, Isaac, vol. i. 60, 52, 63, 59, 67,
73, 130.
Sergeant, John, vol. ii. 414, 467.
Sergeant, J. D., vol. i. 79.
Sedgwick, Thoo., vol. i. 143.
Sedgwick, Theo., vol. ii, 351,
Senf, Colonel, vol. i. 561.
Seymour, Thos. vol. ii. 68.
Shelburne, Lord, vol. i. 248, 336, 837,
338, 340, 342, 354.
Sherman, Roger, vol. i. 494, 519 ; vol.
ii. 76, 81, 85, 128, 129, 156.
Shippen, William, vol. i. 480.
Short, William, vol. ii. 483.
Sims V. Irvine, vol. ii. 208.
xSimons, Colonel, vol. i. 556.
Skinner, Chief Justice, vol. i. 463.
Slaughter, Philip, vol. ii. 296.
Smalley, Dr. John, vol. ii. 58,
Smith, Bishop, vol. i. 643
Smith, William, vol. i. 31, 175, 202.
Sparks, Jared, vol. i. 336, 340.
Spencer, Chief Justice, vol. i. 221.
Spooner, Dr., vol. ii. 29.
Starke, vol. ii. 309.
Steuben, Baron, vol. ii. 299.
Stevens, Edward, vol. ii. 290.

Stoddert, Benj., vol. ii. 229, 400, 401.
Story, Joseph, vol. ii. 280, 298, 824,
409, 410, 412, 415, 460, 471, 472,
529, 530, 533, 535, 639, 540, 541.
Stouppe, Rev. Mr., vol. i. 28, 24.
St. Clair, Arthur, vol. i. 232, 233.
Stedman, vol. i. 564, 571.
Steele, Richard, vol. i. 611.
Steptoe, Dr., vol. i. 480.
Stirling, Lord, vol. i. 31 ; vol. ii. 77.
St. Leger, Col.,vol. i. 223, 224, 227,280.
Strachey, Henry, vol. i. 345, 347, 348.
Stone, Thomas, vol. i. 145.
Strong, Caleb, vol. ii. 170, 182.
Strong, vol. ii. 105.
Stuart, John, vol. i. 547.
Sullivan, John, vol. i. 138, 512,619,.521.
Sullivan, William, vol. i. 427, 428.
Sumner, Increase, vol. ii. 30, 36.
Sumpter, T., vol. i. 571-573, 575, 617.
Suwarrow, vol. ii. 232.
Swartwout, Samuel, vol.ii. 422,423, 424.
Talbot, vol. ii. 225.
Taliaferro, Lawrence, vol. ii. 290.
Talleyrand, M., vol. i. 50; vol. ii. 221,
222, 224, 231, 239, 253, 355-382.
Tappen, Christopher, vol. i. 222.
Tarleton, B., vol. i. 576, 576.
Taylor, vol. ii. 399.
Tazewell, Littleton W., vol. ii. 502.
Ten Broeck, Abraham, vol. i. 203.
Tennent, Rev. Mr., vol. i. 504.
The Cherokee Nation v. Georgia, vol,
ii, 465.
Thiers, M., vol. ii. 213.
Thompson, Rev. Mr., vol. ii. 284.
Thompson, C, vol. i. 81, 82, 314, 481,
Thurlow, Lord, vol. i. 440.
Tilghman, E., vol. i. 461 ; vol. ii. 414.
Tompkins, Daniel D., vol. i. 221.
Tompkins, Jonathan D., vol. i. 223.
Townsend, Mr. Sec.,vol. i. 332,335,347.
Townshend, Charles, vol. i. 468, 469;
vol. ii. 66.
Townshend, Samuel, vol. i. 203.
Tracy, Uriah, vol. ii. 180.
Tredwell, Thomas, vol. i. 222.
Trott, Chief Justice, vol. i. 444.
Trowbridge, Edmund, vol. ii. 21, 22.
Trumbull, J., vol. i. 643; vol. ii.67,274.

560

INDEX.

Trumbull, Jonathan, vol. i. 181 : vol.
ii. 73, 74, 79, 81, 85, 87, 91, 92, 95,
106, 109, 112.
Truxton, Thomas, vol. ii. 225.
Tryon, WilHam, vol. i. 174.
Turner v. The Bank of North America,
vol. ii. 208.
Van Birkel, vol. ii. 102, 110.
Van Buren, M., vol. i. 221 ; vol. ii. 496.
Van Courtlandt, Jacobus, vol. i. 17.
Van Courtlandt, Mary, vol. i. 17, 19.
Van Courtlandt, Pierre, vol. i. 205,222.
Van Rensselaer, S., vol. i. 221, 396.
Van Schanck, Peter, vol. i. 56, 66, 193.
Van Zandt, Jacobus, vol. i. 67,
Vaughan, Benjamin, vol. i. 340.
Volney, M., vol. ii. 252, 253.
Voltaire, vol. i. 61.
Wadsworth, Gen, J,, vol, li, 85, 351.
Ward, Samuel, vol. i. 91, 619.
Ware v. Hylton, vol. ii. 39, 197, 308.
Warren, James, vol. i. 82, 140.
Warren, Joseph, vol. i. 141.
Washington, Bushrod, vol. ii. 384^886,
446, 475-484.
Washington, George, vol. i. 86, 87,
184, 143, 173, 174, 179, 188, 232,
240, 242, 254, 265, 256, 273, 280,
283, 291, 306, 364, 372, 374, 376,
382, 383, 389, 397, 402, 403, 404,
406, 412, 419, 445, 493, 621, 539,
542, 554, 578, 574, 592, 593, 601,
602, 619, 620, 622, 632; vol. ii. 86,
46, 46, 69, 74, 75, 77, 87, 88, 104,
107, 127, 162, 168, 170, 171, 174-
176, 182, 209, 210, 218, 217-219,
233, 255, 279, 282, 294-296, 348,
349, 352, 358, 385-390, 393-395,
400, 411, 475, 437, 497, 516, 585.
Watson, Governor, vol. ii. 79.
Wayne, Anthony, vol. ii. 299.
Wayne, Caleb P., vol. ii. 476, 481, 482,
483, 486, 492,
Webster, D., vol.i. 37; vol. ii. 149, 410,
413, 444-446, 447, 450, 457,458,473.
Webister, Noah, vol. ii. 63.
Weddeburn, Alexander, vol i, 29, 38.

Weems, Mason L., vol. ii. 480,
Wells, vol, ii. 414.
Wheaton, Henry, vol. i. 221,
Whipple, William, vol, i. 519,
White, Bishop, vol. ii. 546.
Wibird, Anthony, vol. i. 86,
Wickham, John, vol. ii. 309, 415, 426
Wilkes, John, vol. i. 131, 163,
Wilkinson, Gen. J., vol. ii. 422, 424.
Willett, Marinus, vol. i. 230.
Williams' Case, vol. ii. 194, 196,
Williams, Ezekiel, vol. ii. 69,
Williams, Mr,, vol. ii. 265.
Williams, Sheriff, vol. i. 422.
Williamson, vol. i. 647, 557.
Willing, Thomas, vol. i. 144, 616, 516
Willis, Capt., vol. ii. 355.
Wilson V. Daniel, vol. ii. 206.
Wilson, James, vol. i. 142, 161, 512,
607, 621; vol, ii, 37, 133, 384,
Winthrop, Samuel, vol. ii. 21.
Wirt, William, vol. i. 114, 116, 118,
493, 494; vol. ii. 305, 307, 310, 415,
426, 444, 447, 460, 467, 467.
Wiscart v. Dauchy, vol. ii. 203.
Wisner, Henry, vol. i. 203.
Witherspoon, John, vol. i. 267,480,692.
Wolcott, Abigail, vol. ii. 61.
Wolcott, Oliver, vol. i. 638 ; vol. ii. 162,
164, 169, 179, 180, 215, 226-228,
233, 244, 247, 248, 249, 381, 390,
391, 400, 401, 402, 403, 406.
Wolcott, Oliver, Sr., vol. ii. 73, 101,
103, 171, 173, 174, 181.
Woleott, William, vol. ii. 61.
Wood, Joseph, vol. ii. 116.
Woodford, Colonel, vol. ii. 292.
Woodford, General Wm., vol. ii. 79.
Worcester, Samuel A., vol. ii. 408, 469.
Wythe, George, vol. i. 149, 150, 158,
161, 201, 243; vol. ii. 801; 350,
Yates, Abraham, vol, i. 203, 222.
Yates, Robert, vol. i. 175, 203, 222,
375, 415.
York, Duke of, vol. ii. 232,
Zenger, John, vol, i. 41.
Zubly, John, vol. i. 145, 517.

THE END.