FOOTNOTES:
[156] Jefferson to Madison, May 25,1810, Works: Ford, xi, 140.
"There is no man in the court that strikes me like Marshall.... I have never seen a man of whose intellect I had a higher opinion." (Webster to his brother, March 28, 1814, Private Correspondence of Daniel Webster: Webster, i, 244.)
[157] "In the possession of an ordinary man ... it [the office of Chief Justice] would be very apt to disgrace him." (Story to McLean, Oct. 12, 1835, Story, ii, 208.)
[158] Justice Duval's name is often, incorrectly, spelled with two "l's."
[159] "No man had ever a stronger influence upon the minds of others." (American Jurist, xiv, 242.)
[160] Ingersoll: Historical Sketch of the Second War between the United States and Great Britain, 2d Series, i, 74.
[161] "He was not, in any sense of the word, a learned man." (George S. Hillard in North American Review, xlii, 224.)
[162] See vol. i, 163, of this work; also Southern Literary Messenger, xvii, 154; and Terhune: Colonial Homesteads, 92.
[163] See vol. ii, 139, of this work.
[164] Mordecai: Richmond in By-Gone Days, 64.
[165] Terhune, 91.
[166] Ib. 92; and see Howe: Historical Collections of Virginia, 266.
[167] Green Bag, viii, 486.
[168] Personal experience related by Dr. William P. Palmer to Dr. J. Franklin Jameson, and by him to the author.
[169] Meade: Old Churches, Ministers and Families of Virginia, ii, 222.
[170] Magazine of American History, xii, 70; also Green Bag, viii, 486.
[171] Anderson, 214.
[172] The stage schedule was much shorter, but the hours of travel very long. The stage left Petersburg at 3 A.M., arrived at Warrenton at 8 P.M., left Warrenton at 3 A.M., and arrived at Raleigh the same night. (Data furnished by Professor Archibald Henderson.) The stage was seldom on time, however, and the hardships of traveling in it very great. Marshall used it only when in extreme haste, a state of mind into which he seldom would be driven by any emergency.
[173] Mordecai, 64-65. Bishop Meade says of Marshall on his trips to Fauquier County, "Servant he had none." (Meade, ii, 222.)
[174] As related by M. D. Haywood, Librarian of the Supreme Court of North Carolina, to Professor Archibald Henderson and by him to the author; and see Harper's Magazine, lxx, 610; World's Work, i, 395.
[175] Judge James C. MacRae in John Marshall—Life, Character and Judicial Services: Dillon, ii, 68.
[176] As late as April, 1811, the population of Raleigh was between six hundred and seven hundred. Nearly all the houses were of wood. By 1810 there were only four brick houses in the town.
[177] Magazine of American History, xii, 69.
[178] Account of eye-witness as related by Dr. Kemp P. Battle of Raleigh to Professor Henderson and by him to the author.
Another tavern was opened about 1806 by one John Marshall. He had been one of the first commissioners of Raleigh, serving until 1797. He was no relation whatever to the Chief Justice. As already stated (vol. i, footnote to 15, of this work) the name was a common one.
[179] Mr. W. J. Peele of Raleigh to Professor Henderson.
[180] See infra, 154-56.
[181] Haywood to Steele, June 19, 1805. (MS. supplied by Professor Henderson.)
[182] World's Work, i, 395. This statement is supported by the testimony of Mr. Edward V. Valentine of Richmond, who has spent many years gathering and verifying data concerning Richmond and its early citizens. It is also confirmed by the Honorable James Keith, until recently President of the Court of Appeals of Virginia, and by others of the older residents of Richmond. For some opinions thus written, see chaps, iv, v, and vi of this volume.
[183] Green Bag, viii, 484. Sympathetic Richmond even ordered the town clock and town bell muffled. (Meade, ii, 222.)
[184] Statements of two eye-witnesses, Dr. Richard Crouch and William F. Gray, to Mr. Edward V. Valentine and by him related to the author.
[185] Accounts given Professor J. Franklin Jameson by old residents of Richmond, and by Professor Jameson to the author.
[186] Marshall to his wife, Washington, Feb. 16, 1818, MS.
[187] Same to same, March 12, 1826, MS.
[188] Same to same, Feb. 19, 1829, MS.
[189] Marshall to his wife, Washington, Jan. 30, 1831, MS.
[190] See infra, chap. x.
[191] Mrs. Marshall did not write to her children, it would seem. When he was in Richmond, the Chief Justice himself sent messages from her which were ordinary expressions of affection.
"Your mother is very much gratified with the account you give from yourself and Claudia of all your affairs & especially of your children and hopes for its continuance. She looks with some impatience for similar information from John. She desires me to send her love to all the family including Miss Maria and to tell you that this hot weather distresses her very much & she wishes you also to give her love to John & Elizabeth & their children." (Marshall to his son James K. Marshall, Richmond, July 3, 1827, MS.)
[192] See vol. i, footnote to 189, of this work.
[193] In Leeds Parish, near Oakhill, Fauquier County.
[194] Meade, ii, 221-22.
[195] Green Bag, viii, 487.
[196] Howe, 275-76.
[197] Ib.
[198] This story was originally published in the Winchester Republican. The incident is said to have occurred at McGuire's hotel in Winchester. The newspaper account is reproduced in the Charleston (S.C.) edition (1845) of Howe's book, 275-76.
[199] Joseph Story in Dillon, iii, 364-66.
[200] Martineau: Retrospect of Western Travels, i, 150.
[201] North American Review, xx, 444-45.
[202] Marshall to Story, Oct. 29, 1828, Proceedings, Massachusetts Historical Society, 2d Series, xiv, 337-38.
[203] Thomas, born July 21, 1784; Jacquelin Ambler, born December 3, 1787; Mary, born September 17, 1795; John, born January 15, 1798; James Keith, born February 13, 1800; Edward Carrington, born January 13, 1805. (Paxton: Marshall Family, Genealogical Chart.)
[204] Edward Carrington was the only son to receive the degree of A.B. from Harvard (1826).
[205] Paxton, 100.
[206] Marshall to Story, June 26, 1831, Proceedings, Mass. Hist. Soc. 2d Series, xiv, 344-46.
[207] See vol. i, 55-56, of this work.
[208] Howe (Charleston, S.C., ed. of 1845), 266.
[209] Meade, ii, 222.
[210] Tyler: Tyler, i, 220; and see vol. ii, 182-83, of this work.
[211] White: A Sketch of Chester Harding, Artist, 195-96.
[212] Lippincott's Magazine, ii, 624. Paulding makes this comment on Marshall: "In his hours of relaxation he was as full of fun and as natural as a child. He entered into the spirit of athletic exercises with the ardor of youth; and at sixty-odd years of age was one of the best quoit-players in Virginia." (Ib. 626.)
[213] American Turf Register and Sporting Magazine (1829), i, 41-42; and see Mordecai, 188-89.
[214] Recipe for the Quoit Club punch, Green Bag, viii, 482. This recipe was used for many years by the Richmond Light Infantry Blues.
[215] See vol. ii, 183, of this work.
[216] On these occasions Mrs. Marshall spent the nights at the house of her daughter or sister.
[217] For an extended description of Marshall's "lawyer dinners" see Terhune, 85-87.
[218] See vol. i, 44-45, 153-54, of this work.
[219] Marshall to Story, Nov. 26, 1826, Story, i, 506.
[220] Story to his wife, Feb. 26, 1832, ib. ii, 84.
[221] Marshall to Story, Sept. 30, 1829, Proceedings, Mass. Hist. Soc. 2d Series, xiv, 341.
[222] Statement of Miss Elizabeth Marshall of Leeds Manor to the author.
[223] Meade, i, footnote to 99.
[224] World's Work, i, 395.
[225] Gustavus Schmidt in Louisiana Law Journal (1841), i, No. 1, 85-86. Mr. Schmidt's description is of Marshall in the court-room at Richmond when holding the United States Circuit Court at that place. Ticknor, Story, and others show that the same was true in Washington.
[226] Quincy: Figures of the Past, 242-43.
[227] Story to Fay, Feb. 25, 1808, Story, i, 166-67.
[228] Story to Martineau, Oct. 8, 1835, Story, ii, 205.
[229] Ib. i, 522.
[230] Gustavus Schmidt in Louisiana Law Journal (1841), i, No. 1, 85-86.
[231] Related to the author by Mr. Sussex D. Davis of the Philadelphia bar.
[232] Related to the author by Thomas Marshall Smith of Baltimore, a descendant of Marshall. Mr. Smith says that this story has been handed down through three generations of his family.
[233] Marshall to his wife, Feb. 14, 1817, MS.
[234] Same to same, Jan. 4, 1823, MS.
[235] For excellent descriptions of Washington society during Marshall's period see the letters of Moss Kent, then a Representative in Congress. These MSS. are in the Library of Congress. Also see Story to his wife, Feb. 7, 1810, Story, i, 196.
[236] Marshall to his wife, Jan. 30, 1831, MS.
[237] This was painted for the Boston Athenæum. See frontispiece in vol. iii. The other portrait by Harding, painted in Richmond (see supra, 76), was given to Story who presented it to the Harvard Law School.
[238] White: Sketch of Chester Harding, 194-96.
For the Chief Justice to lose or forget articles of clothing was nothing unusual. "He lost a coat, when he dined at the Secretary of the Navy's," writes Story who had been making a search for Marshall's missing garment. (Story to Webster, March 18, 1828, Story MSS. Mass. Hist. Soc.)
[239] Story, ii, 504-05.
[240] Story to Williams, Feb. 16, 1812, ib. i, 214.
[241] Story to Fay, Feb. 24, 1812, ib. 215.
[242] Ib.
[243] Story to his wife, March 5, 1812, Story, i, 217.
[244] Same to same, March 12, 1812, ib. 219.
[245] Magazine of American History, xii, 69; and see Quincy: Figures of the Past, 189-90. This tale, gathering picturesqueness as it was passed by word of mouth during many years, had its variations.
[246] Marshall to Tazewell, Jan. 20, 1827, MS.
[247] Wirt to Delaplaine, Nov. 5, 1818, Kennedy: Memoirs of the Life of William Wirt, ii, 85.
[248] Bancroft to his wife, Jan. 23, 1832, Howe: Life and Letters of George Bancroft, i, 202.
[249] Even Jefferson, in his bitterest attacks, never intimated anything against Marshall's integrity; and Spencer Roane, when assailing with great violence the opinion of the Chief Justice in M'Culloch vs. Maryland (see infra, chap, vi), paid a high tribute to the purity of his personal character.
[250] Ticknor to his father, Feb. 1, 1815, Ticknor: Life, Letters, and Journals of George Ticknor, i, 33.
[251] Description from personal observation, as quoted in Van Santvoord: Lives and Judicial Services of the Chief Justices, footnote to 363.
[252] Ticknor to his father, as cited in note 1, supra.
[253] Memoirs of John Quincy Adams: Adams, ix, 243.
[254] Wirt to Carr, Dec. 30, 1827, Kennedy, 240. For Story's estimate of Marshall's personality see Dillon, iii, 363-66.
[255] "He was solicitous to hear arguments, and not to decide causes without hearing them. And no judge ever profited more by them. No matter whether the subject was new or old; familiar 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." (Story in Dillon, iii, 377; and see vol. ii, 177-80, of this work.)
[256] See Story's description of Harper, Duponceau, Rawle, Dallas, Ingersoll, Lee, and Martin (Story to Fay, Feb. 16, 1808, Story, i, 162-64); and of Pinkney (notes supra); also see Warren: History of the American Bar, 257-63. We must remember, too, that Webster, Hopkinson, Emmet, Wirt, Ogden, Clay, and others of equal ability and accomplishments, practiced before the Supreme Court when Marshall was Chief Justice.
[257] Story relates that a single case was argued for nine days. (Story to Fay, Feb. 16, 1808, Story, i, 162.)
In the Charlestown Bridge case, argued in 1831, the opening counsel on each side occupied three days. (Story to Ashmun, March 10, 1831, ib. ii, 51.)
Four years later Story writes: "We have now a case ... which has been under argument eight days, and will probably occupy five more." (Story to Fay, March 2, 1835, ib. 193.)
In the lower courts the arguments were even longer. "This is the fourteenth day since this argument was opened. Pinkney ... promised to speak only two hours and a half. He has now spoken two days, and is, at this moment, at it again for the third day." (Wirt to his wife, April 7, 1821, Kennedy, ii, 119.)
[258] Story, i, 96.
[259] Story, i, 2. Elisha Story is said to have been one of the "Indians" who threw overboard the tea at Boston; and he fought at Lexington. When the Revolution got under way, he entered the American Army as a surgeon and served for about two years, when he resigned because of his disgust with the management of the medical department. (Ib.)
[260] Story to Duval, March 30, 1803, ib. 102.
[261] Story to Williams, June 6, 1805, ib. 105-06.
[262] Story, i, 128.
[263] At first, Story supported the Embargo.
[264] See vol. iii, chap, x, of this work.
[265] Otis to Harper, April 19, 1807, Morison: Otis, i, 283.
[266] Cabot to Pickering, Jan. 28, 1808, Lodge: Cabot, 377.
[267] Story to Fay, Feb. 16, 1808, Story, i, 162.
[268] Moss Kent to James Kent, Feb. 1, 1817, Kent MSS. Lib. Cong.
[269] Story, i, 140.
[270] Jefferson to Gallatin, Sept. 27, 1810, Works: Ford, xi, footnote to 152-54.
[271] See vol. ii, 461-74, of this work.
[272] See vol. iii, chap, vi, of this work.
[273] Hunt: Life of Edward Livingston, 138.
[274] Ib. 140.
[275] Annals, 10th Cong. 2d Sess. 702.
[276] Annals, 11th Cong. 1st and 2d Sess. 323, 327-49, 418-19, 1373, 1617-18, 1694-1702.
[277] See supra, 25, 35-41.
[278] Tyler to Jefferson, May 12, 1810, Tyler: Tyler, i, 246-47.
[279] Cyrus Griffin was educated in England; was a member of the first Legislature of Virginia after the Declaration of Independence; was a delegate to the Continental Congress in 1778-81, and again in 1787-88, and was President of that body during the last year of his service. He was made President of the Supreme Court of Admiralty, and held that office until the court was abolished. When the Constitution was adopted, and Washington elected President, one of his first acts, after the passage of the Ellsworth Judiciary Law, was to appoint Judge Griffin to the newly created office of Judge of the United States Court for the District of Virginia. It is thus evident that Jefferson's statement was not accurate.
[280] Jefferson to Madison, May 25, 1810, Works: Ford, xi, 139-41.
[281] Jefferson to Tyler, May 26, 1810, Tyler: Tyler, i, 247-48; also Works: Ford, xi, footnote to 141-43.
[282] Jefferson to Gallatin, Sept. 27, 1810, Works: Ford, xi, footnote to 152-54.
[283] Gideon Granger, as Jefferson's Postmaster-General, had lobbied on the floor of the House for the Yazoo Bill, offering government contracts for votes. He was denounced by Randolph in one of the most scathing arraignments ever heard in Congress. (See vol. iii, 578-79, of this work.)
[284] Jefferson to Madison, Oct. 15, 1810, Works: Ford, xi, 150-52. Granger was an eager candidate for the place, and had asked Jefferson's support. In assuring him that it was given, Jefferson tells Granger of his "esteem & approbation," and adds that the appointment of "a firm unequivocating republican" is vital. (Jefferson to Granger, Oct. 22, 1810, ib. footnote to 155.)
[285] Hildreth: History of the United States, vi, 241; and see Adams: U.S. v, 359-60.
[286] See vol. iii, 541-43, of this work.
[287] Story, i, 212.
[288] Jefferson to Wirt, April 12, 1812, Works: Ford, xi, 227.
[289] Tyler to Jefferson, May 17, 1812, Tyler: Tyler, i, 263.
[290] Tyler to Jefferson, May 17, 1812, Tyler: Tyler, i, 263-64.
[291] 1 Brockenbrough, 206-12.
[292] Jefferson to Wirt, April 12, 1812, Works: Ford, xi, 226-27. On the Batture controversy see Hildreth, vi, 143-48.
[293] The articles of both Jefferson and Livingston are to be found in Hall's American Law Journal (Philadelphia, 1816), vol. v, 1-91, 113-289. A brief but valuable summary of Livingston's reply to Jefferson is found in Hunt: Livingston, 143-80. For an abstract of Jefferson's attack, see Randall: Life of Thomas Jefferson, iii, 266-68.
[294] See Hunt: Livingston, 276-80.
[295] Kent to Livingston, May 13, 1814, Hunt: Livingston, 181-82. Kent was appointed Chancellor of the State of New York, Feb. 25, 1814. His opinions are contained in Johnson's Chancery Reports, to which he refers in this letter.
For twenty years Livingston fought for what he believed to be his rights to the batture, and, in the end, was successful; but in such fashion that the full value of the property was only realized by his family long after his death.
Notwithstanding Jefferson's hostility, Livingston grew in public favor, was elected to the Louisiana State Legislature and then to Congress, where his work was notable. Later, in 1829, he was chosen United States Senator from that State; and, after serving one term, was appointed Secretary of State by President Jackson. In this office he prepared most of the President's state papers and wrote Jackson's great Nullification Proclamation in 1832.
Livingston was then sent as Minister to France and, by his brilliant conduct of the negotiations over the French Spoliation Claims, secured the payment of them. He won fame throughout Europe and Spanish America by his various works on the penal code and code of procedure. In the learning of the law he was not far inferior to Story and Kent.
Aside from one or two sketches, there is no account of his life except an inadequate biography by Charles H. Hunt.
[296] Story, i, 186.
[297] Marshall to Story, Sept. 18, 1821, Proceedings, Mass. Hist. Soc. 2d series, xiv, 330; and see infra, 363-64.
[298] Marbury vs. Madison.
[299] Marshall to Story, July 13, 1821, Proceedings, Mass. Hist. Soc. 2d series, xiv, 328-29.