THE PERIOD OF AMERICANIZATION
Great Britain is fighting our battles and the battles of mankind, and France is combating for the power to enslave and plunder us and all the world. (Fisher Ames.)
Though every one of these Bugbears is an empty Phantom, yet the People seem to believe every article of this bombastical Creed. Who shall touch these blind eyes. (John Adams.)
The object of England, long obvious, is to claim the ocean as her domain. (Jefferson.)
I am for resistance by the sword. (Henry Clay.)
Into the life of John Marshall war was strangely woven. His birth, his young manhood, his public services before he became Chief Justice, were coincident with, and affected by, war. It seemed to be the decree of Fate that his career should march side by side with armed conflict, and that the final phase of that career should open with a war—a war, too, which brought forth a National consciousness among the people and demonstrated a National strength hitherto unsuspected in their fundamental law.
Yet, while American Nationalism was Marshall's one and only great conception, and the fostering of it the purpose of his life, he was wholly out of sympathy with the National movement that led to our second conflict with Great Britain, and against the continuance of it. He heartily shared the opinion of the Federalist leaders that the War of 1812 was unnecessary, unwise, and unrighteous.
By the time France and England had renewed hostilities in 1803, the sympathies of these men had become wholly British. The excesses of the French Revolution had started them on this course of feeling and thinking. Their detestation of Jefferson, their abhorrence of Republican doctrines, their resentment of Virginia domination, all hastened their progress toward partisanship for Great Britain. They had, indeed, reverted to the colonial state of mind, and the old phrases, "the mother country," "the protection of the British fleet,"[1] were forever on their lips.
These Federalists passionately hated France; to them France was only the monstrous child of the terrible Revolution which, in the name of human rights, had attacked successfully every idea dear to their hearts—upset all order, endangered all property, overturned all respectability. They were sure that Napoleon intended to subjugate the world; and that Great Britain was our only bulwark against the aggressions of the Conqueror—that "varlet" whose "patron-saint [is] Beelzebub," as Gouverneur Morris referred to Napoleon.[2]
So, too, thought John Marshall. No man, except his kinsman Thomas Jefferson, cherished a prejudice more fondly than he. Perhaps no better example of first impressions strongly made and tenaciously retained can be found than in these two men. Jefferson was as hostile as Marshall was friendly to Great Britain; and they held exactly opposite sentiments toward France. Jefferson's strongest title to immortality was the Declaration of Independence; nearly all of his foreign embroilments had been with British statesmen. In British conservatism he had found the most resolute opposition to those democratic reforms he so passionately championed, and which he rightly considered the manifestations of a world movement.[3]
And Jefferson adored France, in whose entrancing capital he had spent his happiest years. There his radical tendencies had found encouragement. He looked upon the French Revolution as the breaking of humanity's chains, politically, intellectually, spiritually.[4] He believed that the war of the allied governments of Europe against the new-born French Republic was a monarchical combination to extinguish the flame of liberty which France had lighted.
Marshall, on the other hand, never could forget his experience with the French. And his revelation of what he had endured while in Paris had brought him his first National fame.[5] Then, too, his idol, Washington, had shared his own views—indeed, Marshall had been instrumental in the formation of Washington's settled opinions. Marshall had championed the Jay Treaty, and, in doing so, had necessarily taken the side of Great Britain as opposed to France.[6] His business interests[7] powerfully inclined him in the same direction. His personal friends were the ageing Federalists.
He had also become obsessed with an almost religious devotion to the rights of property, to steady government by "the rich, the wise and good,"[8] to "respectable" society. These convictions Marshall found most firmly retained and best defended in the commercial centers of the East and North. The stoutest champions of Marshall's beloved stability of institutions and customs were the old Federalist leaders, particularly of New England and New York. They had been his comrades and associates in bygone days and continued to be his intimates.
In short, John Marshall had become the personification of the reaction against popular government that followed the French Revolution. With him and men of his cast of mind, Great Britain had come to represent all that was enduring and good, and France all that was eruptive and evil. Such was his outlook on social and political life when, after these traditional European foes were again at war, their spoliations of American commerce, violations of American rights, and insults to American honor once more became flagrant; and such continued to be his opinion and feeling after these aggressions had become intolerable.
Since the adoption of the Constitution, nearly all Americans, except the younger generation, had become re-Europeanized in thought and feeling. Their partisanship of France and Great Britain relegated America to a subordinate place in their minds and hearts. Just as the anti-Federalists and their successors, the Republicans, had been more concerned in the triumph of revolutionary France over "monarchical" England than in the maintenance of American interests, rights, and honor, so now the Federalists were equally violent in their championship of Great Britain in her conflict with the France of Napoleon. Precisely as the French partisans of a few years earlier had asserted that the cause of France was that of America also,[9] the Federalists now insisted that the success of Great Britain meant the salvation of the United States.
"Great Britain is fighting our battles and the battles of mankind, and France is combating for the power to enslave and plunder us and all the world,"[10] wrote that faithful interpreter of extreme New England Federalism, Fisher Ames, just after the European conflict was renewed. Such opinions were not confined to the North and East. In South Carolina, John Rutledge was under the same spell. Writing to "the head Quarters of good Principles," Boston, he avowed that "I have long considered England as but the advanced guard of our Country.... If they fall we do."[11] Scores of quotations from prominent Federalists expressive of the same views might be adduced.[12] Even the assault on the Chesapeake did not change or even soften them.[13] On the other hand, the advocates of France as ardently upheld her cause, as fiercely assailed Great Britain.[14]
Never did Americans more seriously need emancipation from foreign influence than in the early decades of the Republic—never was it more vital to their well-being that the people should develop an American spirit, than at the height of the Napoleonic Wars.
Upon the renewal of the European conflict, Great Britain announced wholesale blockades of French ports,[15] ordered the seizure of neutral ships wherever found carrying on trade with an enemy of England;[16] and forbade them to enter the harbors of immense stretches of European coasts.[17] In reply, Napoleon declared the British Islands to be under blockade, and ordered the capture in any waters whatsoever of all ships that had entered British harbors.[18] Great Britain responded with the Orders in Council of 1807 which, in effect, prohibited the oceans to neutral vessels except such as traded directly with England or her colonies; and even this commerce was made subject to a special tax to be paid into the British treasury.[19] Napoleon's swift answer was the Milan Decree,[20] which, among other things, directed all ships submitting to the British Orders in Council to be seized and confiscated in the ports of France or her allies, or captured on the high seas.
All these "decrees," "orders," and "instructions" were, of course, in flagrant violation of international law, and were more injurious to America than to all other neutrals put together. Both belligerents bore down upon American commerce and seized American ships with equal lawlessness.[21] But, since Great Britain commanded the oceans,[22] the United States suffered far more severely from the depredations of that Power.[23] Under pressure of conflict, Great Britain increased her impressment[24] of American sailors. In effect, our ports were blockaded.[25]
Jefferson's lifelong prejudice against Great Britain[26] would permit him to see in all this nothing but a sordid and brutal imperialism. Not for a moment did he understand or consider the British point of view. England's "intentions have been to claim the ocean as her conquest, & prohibit any vessel from navigating it but on ... tribute," he wrote.[27] Nevertheless, he met Great Britain's orders and instructions with hesitant recommendations that the country be put in a state of defense; only feeble preliminary steps were taken to that end.
The President's principal reliance was on the device of taking from Great Britain her American markets. So came the Non-Importation Act of April, 1806, prohibiting the admission of those products that constituted the bulk of Great Britain's immensely profitable trade with the United States.[28] This economic measure was of no avail—it amounted to little more than an encouragement of successful smuggling.
When the Leopard attacked the Chesapeake,[29] Jefferson issued his proclamation reciting the "enormity" as he called it, and ordering all British armed vessels from American waters.[30] The spirit of America was at last aroused.[31] Demands for war rang throughout the land.[32] But they did not come from the lips of Federalists, who, with a few exceptions, protested loudly against any kind of retaliation.
John Lowell, unequaled in talent and learning among the brilliant group of Federalists in Boston, wrote a pamphlet in defense of British conduct.[33] It was an uncommonly able performance, bright, informed, witty, well reasoned. "Despising the threats of prosecution for treason," he would, said Lowell, use his right of free speech to save the country from an unjustifiable war. What did the Chesapeake incident, what did impressment of Americans, what did anything and everything amount to, compared to the one tremendous fact of Great Britain's struggle with France? All thoughtful men knew that Great Britain alone stood between us and that slavery which would be our portion if France should prevail.[34]
Lowell's sparkling essay well set forth the intense conviction of nearly all leading Federalists. Giles was not without justification when he branded them as "the mere Anglican party."[35] The London press had approved the attack on the Chesapeake, applauded Admiral Berkeley, and even insisted upon war against the United States.[36] American Federalists were not far behind the Times and the Morning Post.
Jefferson, on the contrary, vividly stated the thought of the ordinary American: "The English being equally tyrannical at sea as he [Bonaparte] is on land, & that tyranny bearing on us in every point of either honor or interest, I say, 'down with England' and as for what Buonaparte is then to do to us, let us trust to the chapter of accidents, I cannot, with the Anglomen, prefer a certain present evil to a future hypothetical one."[37]
But the President did not propose to execute his policy of "down with England" by any such horrid method as bloodshed. He would stop Americans from trading with the world—that would prevent the capture of our ships and the impressment of our seamen.[38] Thus it was that the Embargo Act of December, 1807, and the supplementary acts of January, March, and April, 1808, were passed.[39] All exportation by sea or land was rigidly forbidden under heavy penalties. Even coasting vessels were not allowed to continue purely American trade unless heavy bond was given that landing would be made exclusively at American ports. Flour could be shipped by sea only in case the President thought it necessary to keep from hunger the population of any given port.[40]
Here was an exercise of National power such as John Marshall had never dreamed of. The effect was disastrous. American ocean-carrying trade was ruined; British ships were given the monopoly of the seas.[41] And England was not "downed," as Jefferson expected. In fact neither France nor Great Britain relaxed its practices in the least.[42]
The commercial interests demanded the repeal of the Embargo laws,[43] so ruinous to American shipping, so destructive to American trade, so futile in redressing the wrongs we had suffered. Massachusetts was enraged. A great proportion of the tonnage of the whole country was owned in that State and the Embargo had paralyzed her chief industry. Here was a fresh source of grievance against the Administration and a just one. Jefferson had, at last, given the Federalists a real issue. Had they availed themselves of it on economic and purely American grounds, they might have begun the rehabilitation of their weakened party throughout the country. But theirs were the vices of pride and of age—they could neither learn nor forget; could not estimate situations as they really were, but only as prejudice made them appear to be.
As soon as Congress convened in November, 1808, New England opened the attack on Jefferson's retaliatory measures. Senator James Hillhouse of Connecticut offered a resolution for the repeal of the obnoxious statutes. "Great Britain was not to be threatened into compliance by a rod of coercion," he said.[44] Pickering made a speech which might well have been delivered in Parliament.[45] British maritime practices were right, the Embargo wrong, and principally injurious to America.[46] The Orders in Council had been issued only after Great Britain "had witnessed ... these atrocities" committed by Napoleon and his plundering armies, "and seen the deadly weapon aimed at her vitals." Yet Jefferson had acted very much as if the United States were a vassal of France.[47]
Again Pickering addressed the Senate, flatly charging that all Embargo measures were "in exact conformity with the views and wishes of the French Emperor, ... the most ruthless tyrant that has scourged the European world, since the Roman Empire fell!" Suppose the British Navy were destroyed and France triumphant over Great Britain—to the other titles of Bonaparte would then "be added that of Emperor of the Two Americas"; for what legions of soldiers "could he not send to the United States in the thousands of British ships, were they also at his command?"[48]
As soon as they were printed, Pickering sent copies of these and speeches of other Federalists to his close associate, the Chief Justice of the United States. Marshall's prompt answer shows how far he had gone in company with New England Federalist opinion.
"I thank you very sincerely," he wrote "for the excellent speeches lately delivered in the senate.... If sound argument & correct reasoning could save our country it would be saved. Nothing can be more completely demonstrated than the inefficacy of the embargo, yet that demonstration seems to be of no avail. I fear most seriously that the same spirit which so tenaciously maintains this measure will impel us to a war with the only power which protects any part of the civilized world from the despotism of that tyrant with whom we shall then be ravaged."[49]
Such was the change that nine years had wrought in the views of John Marshall. When Secretary of State he had arraigned Great Britain for her conduct toward neutrals, denounced the impressment of American sailors, and branded her admiralty courts as habitually unjust if not corrupt.[50] But his hatred of France had metamorphosed the man.
Before Marshall had written this letter, the Legislature of Massachusetts formally declared that the continuance of the Embargo would "endanger ... the union of these States."[51] Talk of secession was steadily growing in New England.[52] The National Government feared open rebellion.[53] Only one eminent Federalist dissented from these views of the party leaders which Marshall also held as fervently as they. That man was the one to whom he owed his place on the Supreme Bench. From his retirement in Quincy, John Adams watched the growing excitement with amused contempt.
"Our Gazettes and Pamphlets," he wrote, "tell us that Bonaparte ... will conquer England, and command all the British Navy, and send I know not how many hundred thousand soldiers here and conquer from New Orleans to Passamaquoddy. Though every one of these Bugbears is an empty Phantom, yet the People seem to believe every article of this bombastical Creed and tremble and shudder in Consequence. Who shall touch these blind eyes?"[54]
On January 9, 1809, Jefferson signed the "Force Act," which the Republican Congress had defiantly passed, and again Marshall beheld such an assertion of National power as the boldest Federalist of Alien and Sedition times never had suggested. Collectors of customs were authorized to seize any vessel or wagon if they suspected the owner of an intention to evade the Embargo laws; ships could be laden only in the presence of National officials, and sailing delayed or prohibited arbitrarily. Rich rewards were provided for informers who should put the Government on the track of any violation of the multitude of restrictions of these statutes or of the Treasury regulations interpretative of them. The militia, the army, the navy were to be employed to enforce obedience.[55]
Along the New England coasts popular wrath swept like a forest fire. Violent resolutions were passed.[56] The Collector of Boston, Benjamin Lincoln, refused to obey the law and resigned.[57] The Legislature of Massachusetts passed a bill denouncing the "Force Act" as unconstitutional, and declaring any officer entering a house in execution of it to be guilty of a high misdemeanor, punishable by fine and imprisonment.[58] The Governor of Connecticut declined the request of the Secretary of War to afford military aid and addressed the Legislature in a speech bristling with sedition.[59] The Embargo must go, said the Federalists, or New England would appeal to arms. Riots broke out in many towns. Withdrawal from the Union was openly advocated.[60] Nor was this sentiment confined to that section. "If the question were barely stirred in New England, some States would drop off the Union like fruit, rotten ripe," wrote A. C. Hanson of Baltimore.[61] Humphrey Marshall of Kentucky declared that he looked to "Boston ... the Cradle, and Salem, the nourse, of American Liberty," as "the source of reformation, or should that be unattainable, of disunion."[62]
Warmly as he sympathized with Federalist opinion of the absurd Republican retaliatory measures, and earnestly as he shared Federalist partisanship for Great Britain, John Marshall deplored all talk of secession and sternly rebuked resistance to National authority, as is shown in his opinion in Fletcher vs. Peck,[63] wherein he asserted the sovereignty of the Nation over a State.
Another occasion, however, gave Marshall a better opportunity to state his views more directly, and to charge them with the whole force of the concurrence of all his associates on the Supreme Bench. This occasion was the resistance of the Legislature and Governor of Pennsylvania to a decree of Richard Peters, Judge of the United States Court for that district, rendered in the notable and dramatic case of Gideon Olmstead. During the Revolution, Olmstead and three other American sailors captured the British sloop Active and sailed for Egg Harbor, New Jersey. Upon nearing their destination, they were overhauled by an armed vessel belonging to the State of Pennsylvania and by an American privateer. The Active was taken to Philadelphia and claimed as a prize of war. The court awarded Olmstead and his comrades only one fourth of the proceeds of the sale of the vessel, the other three fourths going to the State of Pennsylvania, to the officers and crew of the State ship, and to those of the privateer. The Continental Prize Court reversed the decision and ordered the whole amount received for sloop and cargo to be paid to Olmstead and his associates.
This the State court refused to do, and a litigation began which lasted for thirty years. The funds were invested in United States loan certificates, and these were delivered by the State Judge to the State Treasurer, David Rittenhouse, upon a bond saving the Judge harmless in case he, thereafter, should be compelled to pay the amount in controversy to Olmstead. Rittenhouse kept the securities in his personal possession, and after his death they were found among his effects with a note in his handwriting that they would become the property of Pennsylvania when the State released him from his bond to the Judge.
In 1803, Olmstead secured from Judge Peters an order to the daughters of Rittenhouse who, as his executrixes, had possession of the securities, to deliver them to Olmstead and his associates. This proceeding of the National court was promptly met by an act of the State Legislature which declared that the National court had "usurped" jurisdiction, and directed the Governor to "protect the just rights of the state ... from any process whatever issued out of any federal court."[64]
Peters, a good lawyer and an upright judge, but a timorous man, was cowed by this sharp defiance and did nothing. The executrixes held on to the securities. At last, on March 5, 1808, Olmstead applied to the Supreme Court of the United States for a rule directed to Judge Peters to show cause why a mandamus should not issue compelling him to execute his decree. Peters made return that the act of the State Legislature had caused him "from prudential ... motives ... to avoid embroiling the government of the United States and that of Pennsylvania."[65]
Thus the matter came before Marshall. On February 20, 1809, just when threats of resistance to the "Force Act" were sounding loudest, when riots were in progress along the New England seaboard, and a storm of debate over the Embargo and Non-Intercourse laws was raging in Congress, the Chief Justice delivered his opinion in the case of the United States vs. Peters.[66] The court had, began Marshall, considered the return of Judge Peters "with great attention, and with serious concern." The act of the Pennsylvania Legislature challenged the very life of the National Government, for, "if the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals."
These clear, strong words were addressed to Massachusetts and Connecticut no less than to Pennsylvania. They were meant for Marshall's Federalist comrades and friends—for Pickering, and Gore, and Morris, and Otis—as much as for the State officials in Lancaster. His opinion was not confined to the case before him; it was meant for the whole country and especially for those localities where National laws were being denounced and violated, and National authority defied and flouted. Considering the depth and fervor of Marshall's feelings on the whole policy of the Republican régime, his opinion in United States vs. Judge Peters was signally brave and noble.
Forcible resistance by a State to National authority! "So fatal a result must be deprecated by all; and the people of Pennsylvania, not less than the citizens of every other state, must feel a deep interest in resisting principles so destructive of the Union, and in averting consequences so fatal to themselves." Marshall then states the facts of the controversy and concludes that "the state of Pennsylvania can possess no constitutional right" to resist the authority of the National courts. His decision, he says, "is not made without extreme regret at the necessity which has induced the application." But, because "it is a solemn duty" to do so, the "mandamus must be awarded."[67]
Marshall's opinion deeply angered the Legislature and officials of Pennsylvania.[68] When Judge Peters, in obedience to the order of the Supreme Court, directed the United States Marshal to enforce the decree in Olmstead's favor, that official found the militia under command of General Bright drawn up around the house of the two executrixes. The dispute was at last composed, largely because President Madison rebuked Pennsylvania and upheld the National courts.[69]
A week after the delivery of Marshall's opinion, the most oppressive provisions of the Embargo Acts were repealed and a curious non-intercourse law enacted.[70] One section directed the suspension of all commercial restrictions against France or Great Britain in case either belligerent revoked its orders or decrees against the United States; and this the President was to announce by proclamation. The new British Minister, David M. Erskine, now tendered apology and reparation for the attack on the Chesapeake and positively assured the Administration that, if the United States would renew intercourse with Great Britain, the British Orders in Council would be withdrawn on June 10, 1809. Immediately President Madison issued his proclamation stating this fact and announcing that after that happy June day, Americans might renew their long and ruinously suspended trade with all the world not subject to French control.[71]
The Federalists were jubilant.[72] But their joy was quickly turned to wrath—against the Administration. Great Britain repudiated the agreement of her Minister, recalled him, and sent another charged with rigid and impossible instructions.[73] In deep humiliation, Madison issued a second proclamation reciting the facts and restoring to full operation against Great Britain all the restrictive commercial and maritime laws remaining on the statute books.[74] At a banquet in Richmond, Jefferson proposed a toast: "The freedom of the seas!"[75]
Upon the arrival of Francis James Jackson, Erskine's successor as British Minister, the scenes of the Genêt drama[76] were repeated. Jackson was arrogant and overbearing, and his instructions were as harsh as his disposition.[77] Soon the Administration was forced to refuse further conference with him. Jackson then issued an appeal to the American people in the form of a circular to British Consuls in America, accusing the American Government of trickery, concealment of facts, and all but downright falsehood.[78] A letter of Canning to the American Minister at London[79] found its way into the Federalist newspapers, "doubtless by the connivance of the British Minister," says Joseph Story. This letter was, Story thought, an "infamous" appeal to the American people to repudiate their own Government, "the old game of Genêt played over again."[80]
Furious altercations arose all over the country. The Federalists defended Jackson. When the elections came on, the Republicans made tremendous gains in New England as well as in other States,[81] a circumstance that depressed Marshall profoundly. In December an acrimonious debate arose in Congress over a resolution denouncing Jackson's circular letter as a "direct and aggravated insult and affront to the American people and their Government."[82] Every Federalist opposed the resolution. Josiah Quincy of Massachusetts declared that every word of it was a "falsehood," and that the adoption of it would call forth "severe retribution, perhaps in war" from Great Britain.[83]
Disheartened, disgusted, wrathful, Marshall wrote Quincy: "The Federalists of the South participate with their brethren of the North in the gloomy anticipations which your late elections must inspire. The proceedings of the House of Representatives already demonstrate the influence of those elections on the affairs of the Union. I had supposed that the late letter to Mr. Armstrong,[84] and the late seizure [by the French] of an American vessel, simply because she was an American, added to previous burnings, ransoms, and confiscations, would have exhausted to the dregs our cup of servility and degradation; but these measures appear to make no impression on those to whom the United States confide their destinies. To what point are we verging?"[85]
Nor did the Chief Justice keep quiet in Richmond. "We have lost our resentment for the severest injuries a nation ever suffered, because of their being so often repeated. Nay, Judge Marshall and Mr. Pickering & Co. found out Great Britain had given us no cause of complaint,"[86] writes John Tyler. And ever nearer drew the inevitable conflict.
Jackson was unabashed by the condemnation of Congress, and not without reason. Wherever he went, more invitations to dine than he could accept poured in upon him from the "best families"; banquets were given in his honor; the Senate of Massachusetts adopted resolutions condemning the Administration and upholding Jackson, who declared that the State had "done more towards justifying me to the world than it was possible ... that I or any other person could do."[87] The talk of secession grew.[88] At a public banquet given Jackson, Pickering proposed the toast: "The world's last hope—Britain's fast-anchored isle!" It was greeted with a storm of cheers. Pickering's words sped over the country and became the political war cry of Federalism.[89] Marshall, who in Richmond was following "with anxiety" all political news, undoubtedly read it, and his letters show that Pickering's words stated the opinion of the Chief Justice.[90]
Upon the assurance of the French Foreign Minister that the Berlin and Milan Decrees would be revoked after November 1, 1810, President Madison, on November 2, announced what he believed to be Napoleon's settled determination, and recommended the resumption of commercial relations with France and the suspension of all intercourse with Great Britain unless that Power also withdrew its injurious and offensive Orders in Council.[91]
When at Washington, Marshall was frequently in Pickering's company. Before the Chief Justice left for Richmond, the Massachusetts Senator had lent him pamphlets containing part of John Adams's "Cunningham Correspondence." In returning them, Marshall wrote that he had read Adams's letters "with regret." But the European war, rather than the "Cunningham Correspondence," was on the mind of the Chief Justice: "We are looking with anxiety towards the metropolis for political intelligence. Report gives much importance to the communications of Serrurier [the new French Minister],[92] & proclaims him to be charged with requisitions on our government, a submission to which would seem to be impossible.... I will flatter myself that I have not seen you for the last time. Events have so fully demonstrated the correctness of your opinions on subjects the most interesting to our country that I cannot permit myself to believe the succeeding legislature of Massachusetts will deprive the nation of your future services."[93]
As the Federalist faith in Great Britain grew stronger, Federalist distrust of the youthful and growing American people increased. Early in 1811, the bill to admit Louisiana was considered. The Federalists violently resisted it. Josiah Quincy declared that "if this bill passes, the bonds of this Union are virtually dissolved; that the States which compose it are free from their moral obligations, and that, as it will be the right of all, so it will be the duty of some, to prepare definitely for a separation—amicably if they can, violently if they must."[94] Quincy was the embodiment of the soul of Localism: "The first public love of my heart is the Commonwealth of Massachusetts. There is my fireside; there are the tombs of my ancestors."[95]
The spirit of American Nationalism no longer dwelt in the breasts of even the youngest of the Federalist leaders. Its abode now was the hearts of the people of the West and South; and its strongest exponent was a young Kentuckian, Henry Clay, whose feelings and words were those of the heroic seventies. Although but thirty-three years old, he had been appointed for the second time to fill an unexpired term in the National Senate. On February 22, 1810, he addressed that body on the country's wrongs and duty: "Have we not been for years contending against the tyranny of the ocean?" We have tried "peaceful resistance.... When this is abandoned without effect, I am for resistance by the sword."[96] Two years later, in the House, to which he was elected immediately after his term in the Senate expired, and of which he was promptly chosen Speaker, Clay again made an appeal to American patriotism: "The real cause of British aggression was not to distress an enemy, but to destroy a rival!"[97] he passionately exclaimed. Another Patrick Henry had arisen to lead America to a new independence.
Four other young Representatives from the West and South, John C. Calhoun, William Lowndes, Langdon Cheves, and Felix Grundy were as hot for war as was Henry Clay.[98]
Clay's speeches, extravagant, imprudent, and grandiose, had at least one merit: they were thoroughly American and expressed the opinion of the first generation of Americans that had grown up since the colonies won their freedom. Henry Clay spoke their language. But it was not the language of the John Marshall of 1812.
Eventually the Administration was forced to act. On June 1, 1812, President Madison sent to Congress his Message which briefly, and with moderation, stated the situation.[99] On June 4, the House passed a bill declaring war on Great Britain. Every Federalist but three voted against it.[100] The Senate made unimportant amendments which the House accepted;[101] and thus, on June 18, war was formally declared.
At the Fourth of July banquet of the Boston Federalists, among the toasts, by drinking to which the company exhilarated themselves, was this sentiment: "The Existing War—The Child of Prostitution, may no American acknowledge it legitimate."[102] Joseph Story was profoundly alarmed: "I am thoroughly convinced," he wrote, "that the leading Federalists meditate a severance of the Union."[103] His apprehension was justified: "Let the Union be severed. Such a severance presents no terrors to me," wrote the leading Federalist of New England.[104]
While opposition to the war thus began to blaze into open and defiant treason in that section,[105] the old-time Southern Federalists, who detested it no less, sought a more practical, though more timid, way to resist and end it. "Success in this War, would most probably be the worst kind of ruin," wrote Benjamin Stoddert to the sympathetic James McHenry. "There is but one way to save our Country ... change the administration—... this can be affected by bringing forward another Virgn. as the competitor of Madison." For none but a Virginian can get the Presidential electors of that State, said Stoddert.
"There is, then, but one man to be thought of as the candidate of the Federalists and of all who were against the war. That man is John Marshall." Stoddert informs McHenry that he has written an article for a Maryland Federalist paper, the Spirit of Seventy-Six, recommending Marshall for President. "This I have done, because ... every body else ... seems to be seized with apathy ... and because I felt it sacred duty."[106]
Stoddert's newspaper appeal for Marshall's nomination was clear, persuasive, and well reasoned. It opened with the familiar Federalist arguments against the war. It was an "offensive war," which meant the ruin of America. "Thus thinking ... I feel it a solemn duty to my countrymen, to name John Marshall, as a man as highly gifted as any other in the United States, for the important office of Chief Magistrate; and more likely than any other to command the confidence, and unite the votes of that description of men, of all parties, who desire nothing from government, but that it should be wisely and faithfully administered....
"The sterling integrity of this gentleman's character and his high elevation of mind, forbid the suspicion, that he could descend to be a mere party President, or less than the President of the whole people:—but one objection can be urged against him by candid and honorable men: He is a Virginian, and Virginia has already furnished more than her full share of Presidents—This objection in less critical times would be entitled to great weight; but situated as the world is, and as we are, the only consideration now should be, who amongst our ablest statesmen, can best unite the suffrages of the citizens of all parties, in a competition with Mr. Madison, whose continuance in power is incompatible with the safety of the nation?...
"It may happen," continues Stoddert, "that this our beloved country may be ruined for want of the services of the great and good man I have been prompted by sacred duty to introduce, from the mere want of energy among those of his immediate countrymen [Virginians], who think of his virtues and talents as I do; and as I do of the crisis which demands their employment.
"If in his native state men of this description will act in concert, & with a vigor called for by the occasion, and will let the people fairly know, that the contest is between John Marshall, peace, and a new order of things; and James Madison, Albert Gallatin and war, with war taxes, war loans, and all the other dreadful evils of a war in the present state of the world, my life for it they will succeed, and by a considerable majority of the independent votes of Virginia."
Stoddert becomes so enthusiastic that he thinks victory possible without the assistance of Marshall's own State: "Even if they fail in Virginia, the very effort will produce an animation in North Carolina, the middle and Eastern states, that will most probably secure the election of John Marshall. At the worst nothing can be lost but a little labour in a good cause, and everything may be saved, or gained for our country." Stoddert signs his plea "A Maryland Farmer."[107]
In his letter to McHenry he says: "They vote for electors in Virga. by a general ticket, and I am thoroughly persuaded that if the men in that State, who prefer Marshall to Madison, can be animated into Exertion, he will get the votes of that State. What little I can do by private letters to affect this will be done." Stoddert had enlisted one John Davis, an Englishman—writer, traveler, and generally a rolling stone—in the scheme to nominate Marshall. Davis, it seems, went to Virginia on this mission. After investigating conditions in that State, he had informed Stoddert "that if the Virgns. have nerve to believe it will be agreeable to the Northern & E. States, he is sure Marshall will get the Virga. votes."[108]
Stoddert dwells with the affection and anxiety of parentage upon his idea of Marshall for President: "It is not because I prefer Marshall to several other men, that I speak of him—but because I am well convinced it is vain to talk of any other man, and Marshall is a Man in whom Fedts. may confide—Perhaps indeed he is the man for the crisis, which demands great good sense, a great firmness under the garb of great moderation." He then urges McHenry to get to work for Marshall—"support a cause [election of a peace President] on which all that is dear to you depends."[109] Stoddert also wrote two letters to William Coleman of New York, editor of the New York Evening Post, urging Marshall for the Presidency.[110]
Twelve days after Stoddert thus instructed McHenry, Marshall wrote strangely to Robert Smith of Maryland. President Madison had dismissed Smith from the office of Secretary of State for inefficiency in the conduct of our foreign affairs and for intriguing with his brother, Senator Samuel Smith, and others against the Administration's foreign policy.[111] Upon his ejection from the Cabinet, Smith proceeded to "vindicate" himself by publishing a dull and pompous "Address" in which he asserted that we must have a President "of energetic mind, of enlarged and liberal views, of temperate and dignified deportment, of honourable and manly feelings, and as efficient in maintaining, as sagacious in discerning the rights of our much-injured and insulted country."[112] This was a good summary of Marshall's qualifications.
When Stoddert proposed Marshall for the Presidency, Smith wrote the Chief Justice, enclosing a copy of his attack on the Administration. On July 27, 1812, more than five weeks after the United States had declared war, Marshall replied: "Although I have for several years forborn to intermingle with those questions which agitate & excite the feelings of party, it is impossible that I could be inattentive to passing events, or an unconcerned observer of them." But "as they have increased in their importance, the interest, which as an American I must take in them, has also increased; and the declaration of war has appeared to me, as it has to you, to be one of those portentous acts which ought to concentrate on itself the efforts of all those who can take an active part in rescuing their country from the ruin it threatens.
"All minor considerations should be waived; the lines of subdivision between parties, if not absolutely effaced, should at least be convened for a time; and the great division between the friends of peace & the advocates of war ought alone to remain. It is an object of such magnitude as to give to almost every other, comparative insignificance; and all who wish peace ought to unite in the means which may facilitate its attainment, whatever may have been their differences of opinion on other points."[113]
Marshall proceeds to analyze the causes of hostilities. These, he contends, were Madison's subserviency to France and the base duplicity of Napoleon. The British Government and American Federalists had, from the first, asserted that the Emperor's revocation of the Berlin and Milan Decrees was a mere trick to entrap that credulous French partisan, Madison; and this they maintained with ever-increasing evidence to support them. For, in spite of Napoleon's friendly words, American ships were still seized by the French as well as by the British.
In response to the demand of Joel Barlow, the new American Minister to France, for a forthright statement as to whether the obnoxious decrees against neutral commerce had or had not been revoked as to the United States, the French Foreign Minister delivered to Barlow a new decree. This document, called "The Decree of St. Cloud," declared that the former edicts of Napoleon, of which the American Government complained, "are definitively, and to date from the 1st day of November last [1810], considered as not having existed [non avenus] in regard to American vessels." The "decree" was dated April 28, 1811, yet it was handed to Barlow on May 10, 1812. It expressly stated, moreover, that Napoleon issued it because the American Congress had, by the Act of May 2, 1811, prohibited "the vessels and merchandise of Great Britain ... from entering into the ports of the United States."[114]
General John Armstrong, the American Minister who preceded Barlow, never had heard of this decree; it had not been transmitted to the French Minister at Washington; it had not been made public in any way. It was a ruse, declared the Federalists when news of it reached America—a cheap and tawdry trick to save Madison's face, a palpable falsehood, a clumsy afterthought. So also asserted Robert Smith, and so he wrote to the Chief Justice.
Marshall agreed with the fallen Baltimore politician. Continuing his letter to Smith, the longest and most unreserved he ever wrote, except to Washington and to Lee when on the French Mission,[115] the Chief Justice said: "The view you take of the edict purporting to bear date of the 28tḥ of April 1811 appears to me to be perfectly correct ... I am astonished, if in these times any thing ought to astonish, that the same impression is not made on all." Marshall puts many questions based on dates, for the purpose of exposing the fraudulent nature of the French decree and continues:
"Had France felt for the United States any portion of that respect to which our real importance entitles us, would she have failed to give this proof of it? But regardless of the assertion made by the President in his Proclamation of the 2ḍ of Novṛ 1810, regardless of the communications made by the Executive to the Legislature, regardless of the acts of Congress, and regardless of the propositions which we have invariably maintained in our diplomatic intercourse with Great Britain, the Emperor has given a date to his decree, & has assigned a motive for its enactment, which in express terms contradict every assertion made by the American nation throughout all the departments of its government, & remove the foundation on which its whole system has been erected.
"The motive for this offensive & contemptuous proceeding cannot be to rescue himself from the imputation of continuing to enforce his decrees after their formal repeal because this imputation is precisely as applicable to a repeal dated the 28tḥ of April 1811 as to one dated the 1st of November 1810, since the execution of those decrees has continued after the one date as well as after the other. Why then is this obvious fabrication such as we find it? Why has Mṛ Barlow been unable to obtain a paper which might consult the honor & spare the feelings of his government? The answer is not to be disguised. Bonaparte does not sufficiently respect us to exhibit for our sake, to France, to America, to Britain, or to the world, any evidence of his having receded one step from the position he had taken.
"He could not be prevailed on, even after we had done all he required, to soften any one of his acts so far as to give it the appearance of his having advanced one step to meet us. That this step, or rather the appearance of having taken it, might save our reputation was regarded as dust in the balance. Even now, after our solemn & repeated assertions that our discrimination between the belligerents is founded altogether on a first advance of France—on a decisive & unequivocal repeal of all her obnoxious decrees; after we have engaged in a war of the most calamitous character, avowedly, because France had repealed those decrees, the Emperor scorns to countenance the assertion or to leave it uncontradicted.
"He avers to ourselves, to our selected enemy, & to the world, that, whatever pretexts we may assign for our conduct, he has in fact ceded nothing, he has made no advance, he stands on his original ground & we have marched up to it. We have submitted, completely submitted; & he will not leave us the poor consolation of concealing that submission from ourselves. But not even our submission has obtained relief. His cruizers still continue to capture, sink, burn & destroy.
"I cannot contemplate this subject without excessive mortification as well at the contempt with which we are treated as at the infatuation of my countrymen. It is not however for me to indulge these feelings though I cannot so entirely suppress them as not sometimes though rarely to allow them a place in a private letter." Marshall assures Smith that he has "read with attention and approbation" the paper sent him and will see to its "republication."[116]
From reading Marshall's letter without a knowledge of the facts, one could not possibly infer that America ever had been wronged by the Power with which we were then at war. All the strength of his logical and analytical mind is brought to bear upon the date and motives of Napoleon's last decree. He wrote in the tone and style, and with the controversial ability of his state papers, when at the head of the Adams Cabinet. But had the British Foreign Secretary guided his pen, his indictment of France and America could not have been more unsparing. His letter to Smith was a call to peace advocates and British partisans to combine to end the war by overthrowing the Administration.
This unfortunate letter was written during the long period between the adjournment of the Supreme Court in March, 1812, and its next session in February of the following year. Marshall's sentiments are in sharp contrast with those of Joseph Story, whose letters, written from his Massachusetts home, strongly condemn those who were openly opposing the war. "The present," he writes, "was the last occasion which patriotism ought to have sought to create divisions."[117]
Apparently the Administration did not know of Marshall's real feelings. Immediately after the declaration of war, Monroe, who succeeded Smith as Secretary of State, had sent his old personal friend, the Chief Justice, some documents relating to the war. If Marshall had been uninformed as to the causes that drove the United States to take militant action, these papers supplied that information. In acknowledging receipt of them, he wrote Monroe:
"On my return to day from my farm where I pass a considerable portion of my time in laborious relaxation, I found a copy of the message of the President of the 1st inst accompanied by the report of the Committee of foreign relations & the declaration of war against Great Britain, under cover from you.
"Permit me to subjoin to my thanks for this mark of your attention my fervent wish that this momentous measure may, in its operation on the interest & honor of our country, disappoint only its enemies. Whether my prayer be heard or not I shall remain with respectful esteem," etc.[118]
Cold as this letter was, and capable as it was of double interpretation, to the men sorely pressed by the immediate exigencies of combat, it gave no inkling that the Chief Justice of the United States was at that very moment not only in close sympathy with the peace party, but was actually encouraging that party in its efforts to end the war.[119]
Just at this time, Marshall must have longed for seclusion, and, by a lucky chance, it was afforded him. One of the earliest and most beneficial effects of the Non-Importation, Embargo, and Non-Intercourse laws that preceded the war, was the heavily increased migration from the seaboard States to the territories beyond the Alleghanies. The dramatic story of Burr's adventures and designs had reached every ear and had turned toward the Western country the eyes of the poor, the adventurous, the aspiring; already thousands of settlers were taking up the new lands over the mountains. Thus came a practical consideration of improved means of travel and transportation. Fresh interest in the use of waterways was given by Fulton's invention, which seized upon the imagination of men. The possibilities of steam navigation were in the minds of all who observed the expansion of the country and the growth of domestic commerce.
Before the outbreak of war, the Legislature of Virginia passed an act appointing commissioners "for the purpose of viewing certain rivers within this Commonwealth,"[120] and Marshall was made the head of this body of investigators. Nothing could have pleased him more. It was practical work on a matter that interested him profoundly, and the renewal of a subject which he had entertained since his young manhood.[121]
This tour of observation promised to be full of variety and adventure, tinged with danger, into forests, over mountains, and along streams and rivers not yet thoroughly explored. For a short time Marshall would again live over the days of his boyhood. Most inviting of all, he would get far away from talk or thought of the detested war. Whether the Presidential scheming in his behalf bore fruit or withered, his absence in the wilderness was an ideal preparation to meet either outcome.
In his fifty-seventh year Marshall set out at the head of the expedition, and a thorough piece of work he did. With chain and spirit level the route was carefully surveyed from Lynchburg to the Ohio. Sometimes progress was made slowly and with the utmost labor. In places the scenes were "awful and discouraging."
The elaborate report which the commission submitted to the Legislature was written by Marshall. It reads, says the surveyor of this division of the Chesapeake and Ohio Railway,[122] "as an account of that survey of 1869, when I pulled a chain down the rugged banks of New River." Practicable sections were accurately pointed out and the methods by which they could best be utilized were recommended with particular care.
Marshall's report is alive with far-seeing and statesmanlike suggestions. He thinks, in 1812, that steamboats can be run successfully on the New River, but fears that the expense will be too great. The velocity of the current gives him some anxiety, but "the currents of the Hudson, of the Mohawk, and of the Mississippi, are very strong; and ... a practice so entirely novel as the use of steam in navigation, will probably receive great improvement."
The expense of the undertaking must, he says, depend on the use to be made of the route. Should the intention be only to assist the local traffic of the "upper country down the James river," the expense would not be great. But, "if the views of the legislature shall extend to a free commercial intercourse with the western states," the route must compete with others then existing "or that may be opened." In that case "no improvement ought to be undertaken but with a determination to make it complete and effectual." If this were done, the commerce of Kentucky, Ohio, and even a part of Southwestern Pennsylvania would pour through Virginia to the Atlantic States. This was a rich prize which other States were exerting themselves to capture. Moreover, such "commercial intercourse" would bind Virginia to the growing West by "strong ties" of "friendly sentiments," and these were above price. "In that mysterious future which is in reserve, and is yet hidden from us, events may occur to render" such a community of interest and mutual regard "too valuable to be estimated in dollars and cents."
Marshall pictures the growth of the West, "that extensive and fertile country ... increasing in wealth and population with a rapidity which baffles calculation." Not only would Virginia profit by opening a great trade route to the West, but the Nation would be vastly benefited. "Every measure which tends to cement more closely the union of the eastern with the western states" would be invaluable to the whole country. The military uses of "this central channel of communication" were highly important: "For the want of it, in the course of the last autumn, government was reduced to the necessity of transporting arms in waggons from Richmond to the falls of the Great Kanawha," and "a similar necessity may often occur."[123]
When Marshall returned to Richmond, he found the country depressed and in turmoil. The war had begun dismally for the Americans. Our want of military equipment and training was incredible and assured those disasters that quickly fell upon us. The Federalist opposition to the war grew ever bolder, ever more bitter. The Massachusetts House of Representatives issued an "Address" to the people, urging the organization of a "peace party," adjuring "loud and deep ... disapprobation of this war," and demanding that nobody enlist in the army.[124] Pamphlets were widely circulated, abusing the American Government and upholding the British cause. The ablest of these, "Mr. Madison's War," was by John Lowell of Boston.
The President, he said, "impelled" Congress to declare an "offensive" war against Great Britain. Madison was a member of "the French party." British impressment was the pursuance of a sound policy; the British doctrine—once a British subject, always a British subject—was unassailable. The Orders in Council were just; the execution of them "moderation" itself. On every point, in short, the British Government was right; the French, diabolical; the American, contemptible and wrong. How trivial America's complaints, even if there was a real basis for them, in view of Great Britain's unselfish struggle against "the gigantic dominion of France."
If that Power, "swayed" by that satanic genius, Napoleon, should win, would she not take Nova Scotia, Canada, Louisiana, the Antilles, Florida, South America? After these conquests, would not the United States, "the only remaining republic," be conquered. Most probably. What then ought America to do?" In war offensive and unjust, the citizens are not only obliged not to take part, but by the laws of God, and of civil society, they are bound to abstain." What were the rights of citizens in war-time? To oppose the war by tongue and pen, if they thought the war to be wrong, and to refuse to serve if called "contrary to the Constitution."[125]
Such was the Federalism of 1812-15, such the arguments that would have been urged for the election of Marshall had he been chosen as the peace candidate. But the peace Republicans of New York nominated the able, cunning, and politically corrupt De Witt Clinton; and this man, who had assured the Federalists that he favored an "honourable peace" with England,[126] was endorsed by a Federalist caucus as the anti-war standard-bearer,[127] though not without a swirl of acrimony and dissension.
But for the immense efforts of Clinton to secure the nomination, and the desire of the Federalists and all conservatives that Marshall should continue as Chief Justice,[128] it is possible that he might have been named as the opponent of Madison in the Presidential contest of 1812. "I am far enough from desiring Clinton for President of the United States," wrote Pickering in the preceding July; "I would infinitely prefer another Virginian—if Judge Marshall could be the man."[129]
Marshall surely would have done better than Clinton, who, however, carried New York, New Jersey, Delaware, Maryland, and all the New England States except Vermont. The mercantile classes would have rallied to Marshall's standard more enthusiastically than to Clinton's. The lawyers generally would have worked hard for him. The Federalists, who accepted Clinton with repugnance, would have exerted themselves to the utmost for Marshall, the ideal representative of Federalism. He was personally very strong in North Carolina; the capture of Pennsylvania might have been possible;[130] Vermont might have given him her votes.
The Federalist resistance to the war grew more determined as the months wore on. Throughout New England the men of wealth, nearly all of whom were Federalists, declined to subscribe to the Government loans.[131] The Governors of the New England States refused to aid the National Government with the militia.[132] In Congress the Federalists were obstructing war measures and embarrassing the Government in every way their ingenuity could devise. One method was to force the Administration to tell the truth about Napoleon's pretended revocation of his obnoxious decree. A resolution asking the President to inform the House "when, by whom, and in what manner, the first intelligence was given to this Government" of the St. Cloud Decree, was offered by Daniel Webster,[133] who had been elected to Congress from New Hampshire as the fiercest youthful antagonist of the war in his State.[134] The Republicans agreed, and Webster's resolution was passed by a vote of 137 yeas to only 26 nays.[135]
In compliance the President transmitted a long report. It was signed by the Secretary of State, James Monroe, but bears the imprint of Madison's lucid mind. The report states the facts upon which Congress was compelled to declare war and demonstrates that the Decree of St. Cloud had nothing to do with our militant action, since it was not received until more than a month after our declaration of war. Then follow several clear and brilliant paragraphs setting forth the American view of the causes and purposes of the war.[136]
Timothy Pickering was not now in the Senate. The Republican success in Massachusetts at the State election of 1810 had given the Legislature to that party,[137] and the pugnacious Federalist leader was left at home. There he raged and intrigued and wrote reams of letters. Monroe's report lent new fury to his always burning wrath, and he sent that document, with his malediction upon it, to John Marshall at Richmond. In reply the Chief Justice said that the report "contains a labored apology for France but none for ourselves. It furnishes no reason for our tame unmurmuring acquiescence under the double insult of withholding this paper [Decree of St. Cloud] from us & declaring in our face that it has been put in our possession.
"The report is silent on another subject of still deeper interest. It leaves unnoticed the fact that the Berlin & Milan decrees were certainly not repealed by that insidious decree of April since it had never been communicated to the French courts and cruizers, & since their cruizers had at a period subsequent to the pretended date of that decree received orders to continue to execute the offensive decrees on American vessels.
"The report manifests no sensibility at the disgraceful circumstances which tend strongly to prove that this paper was fabricated to satisfy the importunities of Mr. Barlow, was antedated to suit French purposes; nor at the contempt manifested for the feelings of Americans and their government, by not deigning so to antedate it as to save the credit of our Administration by giving some plausibility to their assertion that the repeal had taken place on the 1st of Novr—But this is a subject with which I dare not trust myself."
The plight of the American land forces, the splendid and unrivaled victories of the American Navy, apparently concerned Marshall not at all. His eyes were turned toward Europe; his ears strained to catch the sounds from foreign battle-fields.
"I look with anxious solicitude—with mingled hope & fear," he continues, "to the great events which are taking place in the north of Germany. It appears probable that a great battle will be fought on or near the Elbe & never had the world more at stake than will probably depend on that battle.
"Your opinions had led me to hope that there was some prospect for a particular peace for ourselves. My own judgement, could I trust it, would tell me that peace or war will be determined by the events in Europe."[138]
Tim Pickering
The "great battle" which Marshall foresaw had been fought nearly eight weeks before his letter was written. Napoleon had been crushingly defeated at Leipzig in October, 1813, and the British, Prussian, and other armies which Great Britain had combined against him, were already invading France. When, later, the news of this arrived in America, it was hailed by the Federalists with extravagant rejoicings.[139]
Secession, if the war were continued, now became the purpose of the more determined Federalist leaders. It was hopeless to keep up the struggle, they said. The Administration had precipitated hostilities without reason or right, without conscience or sense.[140] The people never had favored this wretched conflict; and now the tyrannical Government, failing to secure volunteers, had resorted to conscription—an "infamous" expedient resorted to in brutal violation of the Constitution.[141] So came the Hartford Convention which the cool wisdom of George Cabot saved from proclaiming secession.[142]
Of the two pretenses for war against Great Britain, the Federalists alleged that one had been removed even before we declared war, and that only the false and shallow excuse of British impressment of American seamen remained. Madison and Monroe recognized this as the one great remaining issue, and an Administration pamphlet was published asserting the reason and justice of the American position. This position was that men of every country have a natural right to remove to another land and there become citizens or subjects, entitled to the protection of the government of the nation of their adoption. The British principle, on the contrary, was that British subjects could never thus expatriate themselves, and that, if they did so, the British Government could seize them wherever found, and by force compel them to serve the Empire in any manner the Government chose to direct.
Monroe's brother-in-law, George Hay, still the United States Attorney for the District of Virginia, was selected to write the exposition of the American view. It seems probable that his manuscript was carefully revised by Madison and Monroe, and perhaps by Jefferson.[143] Certainly Hay stated with singular precision the views of the great Republican triumvirate. The pamphlet was entitled "A Treatise on Expatriation." He began: "I hold in utter reprobation the idea that a man is bound by an obligation, permanent and unalterable, to the government of a country which he has abandoned and his allegiance to which he has solemnly adjured."[144]
Immediately John Lowell answered.[145] Nothing keener and more spirited ever came from the pen of that gifted man. "The presidential pamphleteer," as Lowell called Hay, ignored the law. The maxim, once a subject always a subject, was as true of America as of Britain. Had not Ellsworth, when Chief Justice, so decided in the famous case of Isaac Williams?[146] Yet Hay sneered at the opinion of that distinguished jurist.[147]
Pickering joyfully dispatched Lowell's brochure to Marshall, who lost not a moment in writing of his admiration. "I had yesterday the pleasure of receiving your letter of the 8th accompanying Mr Lowell's very masterly review of the treatise on expatriation. I have read it with great pleasure, & thank you very sincerely for this mark of your recollection.
"Could I have ever entertained doubts on the subject, this review would certainly have removed them. Mingled with much pungent raillery is a solidity of argument and an array of authority which in my judgement is entirely conclusive. But in truth it is a question upon which I never entertained a scintilla of doubt; and have never yet heard an argument which ought to excite a doubt in any sound and reflecting mind. It will be to every thinking American a most afflicting circumstance, should our government on a principle so completely rejected by the world proceed to the execution of unfortunate, of honorable, and of innocent men."[148]
Astonishing and repellent as these words now appear, they expressed the views of every Federalist lawyer in America. The doctrine of perpetual allegiance was indeed then held and practiced by every government except our own,[149] nor was it rejected by the United States until the Administration became Republican. Marshall, announcing the opinion of the Supreme Court in 1804, had held that an alien could take lands in New Jersey because he had lived in that State when, in 1776, the Legislature passed a law making all residents citizens.[150] Thus he had declared that an American citizen did not cease to be such because he had become the subject of a foreign power. Four years later, in another opinion involving expatriation, he had stated the law to be that a British subject, born in England before 1775, could not take, by devise, lands in Maryland, the statute of that State forbidding aliens from thus acquiring property there.[151] In both these cases, however, Marshall refrained from expressly declaring in terms against the American doctrine.
Even as late as 1821 the Chief Justice undoubtedly retained his opinion that the right of expatriation did not exist,[152] although he did not say so in express terms. But in Marshall's letter on Lowell's pamphlet he flatly avows his belief in the principle of perpetual allegiance, any direct expression on which he so carefully avoided when deciding cases involving it.
Thus the record shows that John Marshall was as bitterly opposed to the War of 1812 as was Pickering or Otis or Lowell. So entirely had he become one of "the aristocracy of talents of reputation, & of property," as Plumer, in 1804, had so accurately styled the class of which he himself was then a member,[153] that Marshall looked upon all but one subject then before the people with the eyes of confirmed reaction. That subject was Nationalism. To that supreme cause he was devoted with all the passion of his deep and powerful nature; and in the service of that cause he was soon to do much more than he had already performed.
Our second war with Great Britain accomplished none of the tangible and immediate objects for which it was fought. The British refused to abandon "the right" of impressment; or to disclaim the British sovereignty of the oceans whenever they chose to assert it; or to pay a farthing for their spoliation of American commerce. On the other hand, the British did not secure one of their demands.[154] The peace treaty did little more than to end hostilities.
But the war achieved an inestimable good—it de-Europeanized America. It put an end to our thinking and feeling only in European terms and emotions. It developed the spirit of the new America, born since our political independence had been achieved, and now for the first time emancipated from the intellectual and spiritual sovereignty of the Old World. It had revealed to this purely American generation a consciousness of its own strength; it could exult in the fact that at last America had dared to fight.
The American Navy, ship for ship, officer for officer, man for man, had proved itself superior to the British Navy, the very name of which had hitherto been mentioned only in terror or admiration of its unconquerable might. In the end, raw and untrained American troops had beaten British regulars. American riflemen of the West and South had overwhelmed the flower of all the armies of Europe. An American frontier officer, Andrew Jackson, had easily outwitted some of Great Britain's ablest and most experienced professional generals. In short, on land and sea America had stood up to, had really beaten, the tremendous Power that had overthrown the mighty Napoleon.
Such were the feelings and thoughts of that Young America which had come into being since John Marshall had put aside his Revolutionary uniform and arms. And in terms very much like those of the foregoing paragraph the American people generally expressed their sentiments.
Moreover, the Embargo, the Non-Intercourse and Non-Importation Acts, the British blockades, the war itself, had revolutionized the country economically and socially. American manufacturing was firmly established. Land travel and land traffic grew to proportions never before imagined, never before desired. The people of distant sections became acquainted.
The eyes of all Americans, except those of the aged or ageing, were turned from across the Atlantic Ocean toward the boundless, the alluring West—their thoughts diverted from the commotions of Europe and the historic antagonism of foreign nations, to the economic conquest of a limitless and virgin empire and to the development of incalculable and untouched resources, all American and all their own.
The migration to the West, which had been increasing for years, now became almost a folk movement. The Eastern States were drained of their young men and women. Some towns were almost depopulated.[155] And these hosts of settlers carried into wilderness and prairie a spirit and pride that had not been seen or felt in America since the time of the Revolution. But their high hopes were to be quickly turned into despair, their pride into ashes; for a condition was speedily to develop that would engulf them in disaster. It was this situation which was to call forth some of the greatest of Marshall's Constitutional opinions. This forbidding future, however, was foreseen by none of that vast throng of home-seekers crowding every route to the "Western Country," in the year of 1815. Only the rosiest dreams were theirs and the spirited consciousness that they were Americans, able to accomplish all things, even the impossible.
It was then a new world in which John Marshall found himself, when, in his sixtieth year, the war which he so abhorred came to an end. A state of things surrounded him little to his liking and yet soon to force from him the exercise of the noblest judicial statesmanship in American history. From the extreme independence of this new period, the intense and sudden Nationalism of the war, the ideas of local sovereignty rekindled by the New England Federalists at the dying fires that Jefferson and the Republicans had lighted in 1798, and from the play of conflicting interests came a reaction against Nationalism which it was Marshall's high mission to check and to turn into channels of National power, National safety, and National well-being.