Chapter I: Preface

Marshall's great Constitutional opinions grew out of, or were addressed to, serious public conditions, national in extent. In these volumes the effort is made to relate the circumstances that required him to give to the country those marvelous state papers: for Marshall's opinions were nothing less than state papers and of the first rank. In order to understand the full meaning of his deliverances and to estimate the just value of his labors, it is necessary to know the historical sources of his foremost expositions of the Constitution, and the historical purposes they were intended to accomplish. Without such knowledge, Marshall's finest pronouncements become mere legal utterances, important, to be sure, but colorless and unattractive.

It is worthy of repetition, even in a preface, that the history of the times is a part of his greatest opinions; and that, in the treatment of them a résumé of the events that produced them must be given. For example, the decision of Marbury _vs._ Madison, at the time and in the manner it was rendered, was compelled by the political situation then existing, unless the principle of judicial supremacy over legislation was to be abandoned. The Judiciary Debate of 1802 in Congress--one of the most brilliant as well as most important legislative engagements in parliamentary history--can no more be overlooked by the student of American Constitutional development, than the opinion of Marshall in Marbury _vs._ Madison can be disregarded.

Again, in Cohens _vs._ Virginia, the Chief Justice rises to heights of exalted--almost emotional--eloquence. Yet the case itself was hardly more than a police court controversy. If the trivial fine of itinerant peddlars of lottery tickets were alone involved, Marshall's splendid passages become unnecessary and, indeed, pompous rhetoric. But when the curtains of history are raised, we see the heroic part that Marshall played and realize the meaning of his powerful language. While Marshall's opinion in M'Culloch _vs._ Maryland, even taken by itself, is a major treatise on constitutional government, it becomes a fascinating chapter in an engaging story, when read in connection with an account of the situation which compelled that outgiving.

The same thing is true of his other historic utterances. Indeed, it may be said that his weightiest opinions were interlocking parts of one great drama.

Much space has been given to the conspiracy and trials of Aaron Burr. The combined story of that adventure and of those prosecutions has not hitherto been told. In the conduct of the Burr trials, Marshall appears in a more intimate and personal fashion than in any other phase of his judicial career; the entire series of events that make up that page of our history is a striking example of the manipulation of public opinion by astute politicians, and is, therefore, useful for the self-guidance of American democracy. Most important of all, the culminating result of this dramatic episode was the definitive establishment of the American law of treason.

In narrating the work of a jurist, the temptation is very strong to engage in legal discussion, and to cite and comment upon the decisions of other courts and the opinions of other judges. This, however, would be the very negation of biography; nor would it add anything of interest or enlightenment to the reader. Such information and analysis are given fully in the various books on Constitutional law and history, in the annotated reports, and in the encyclopædias of law upon the shelves of every lawyer. Care, therefore, has been taken to avoid making any part of the _Life of John Marshall_ a legal treatise.

The manuscript of these volumes has been read by Professor Edward Channing of Harvard; Professor Max Farrand of Yale; Professor Edward S. Corwin of Princeton; Professor William E. Dodd of Chicago University; Professor Clarence W. Alvord of the University of Illinois; Professor James A. Woodburn of Indiana University; Professor Charles H. Ambler of the University of West Virginia; Professor Archibald Henderson of the University of North Carolina; Professor D. R. Anderson of Richmond (Va.) College; and Dr. H. J. Eckenrode of Richmond, Virginia.

The manuscript of the third volume has been read by Professor Charles A. Beard of New York; Dr. Samuel Eliot Morison of Harvard; and Mr. Harold J. Laski of Harvard. The manuscript of both the third and fourth volumes has been read, from the lawyer's point of view, by Mr. Arthur Lord of Boston, President of the Massachusetts Bar Association, and by Mr. Charles Martindale of Indianapolis.

The chapters on the Burr conspiracy and trials have been read by Professor Walter Flavius McCaleb of New York; Professor Isaac Joslin Cox of the University of Cincinnati; and Mr. Samuel H. Wandell of New York. Chapter Three of Volume Three (Marbury _vs._ Madison) has been read by the Honorable Oliver Wendell Holmes, Associate Justice of the Supreme Court of the United States; by the Honorable Philander Chase Knox, United States Senator; and by Mr. James M. Beck of New York. Other special chapters have been read by the Honorable Henry Cabot Lodge, United States Senator; by Professor J. Franklin Jameson of the Department of Historical Research of the Carnegie Institution of Washington; by Professor Charles H. Haskins of Harvard; by Dr. William Draper Lewis of Philadelphia, former Dean of the Law School of the University of Pennsylvania; and by Mr. W. B. Bryan of Washington.

All of these gentlemen have made valuable suggestions of which I have availed myself, and I gratefully acknowledge my indebtedness to them. The responsibility for everything in these volumes, however, is, of course, exclusively mine; and, in stating my appreciation of the comment and criticism with which I have been favored, I do not wish to be relieved of my burden by allowing the inference that any part of it should be assigned to others.

I also owe it to myself again to express my heavy obligation to Mr. Worthington Chauncey Ford, Editor of the Massachusetts Historical Society. As was the case in the preparation of the first two volumes of this work, Mr. Ford has extended to me the resources of his ripe scholarship; while his wise counsel, steady encouragement, and unselfish assistance, have been invaluable in the prosecution of a long and exacting task.

I also again acknowledge my indebtedness to Mr. Lindsay Swift, Editor of the Boston Public Library, who has read with critical care not only the many drafts of the manuscript, but also the proofs of the entire work. Mr. Swift has given, unstintedly, his rare literary taste and critical accomplishment to the examination of these pages.

I also tender my hearty thanks to Dr. Gardner Weld Allen of Boston, who has generously directed the preparation of the bibliography and personally revised it.

Mr. David Maydole Matteson of Cambridge, Massachusetts, has made the index of these volumes as he made that of the first two volumes, and has combined both indexes into one. In rendering this service, Mr. Matteson has also searched for points where text and notes could be made more accurate; and I wish to express my appreciation of his kindness.

My thanks are also owing to the staff of The Riverside Press, and particularly to Mr. Lanius D. Evans, to whose keen interest and watchful care in the production of this work I am indebted for much of whatever exactitude it may possess.

The manuscript sources have been acknowledged, in all instances, in the footnotes where references to them have been made, except in the case of the letters of Marshall to his relatives, for which I again thank those descendants and connections of the Chief Justice named in the preface to Volumes One and Two. The Hopkinson manuscripts are in the possession of Mr. Edward Hopkinson of Philadelphia, to whom I am indebted for the privilege of inspecting this valuable source and for furnishing me with copies of important letters.

In preparing these volumes, Mr. A. P. C. Griffin, Assistant Librarian, and Mr. John Clement Fitzpatrick, of the Manuscript Division of the Library of Congress, have been even more obliging, if possible, than they were in the preparation of the first part of this work. The officers and their assistants of the Boston Public Library, the Boston Athenæum, the Massachusetts State Library, the Massachusetts Historical Society, the Pennsylvania Historical Society, the Virginia State Library, the Indiana State Library, and the Indianapolis City Library, have assisted whole-heartedly in the performance of my labors; and I am glad of the opportunity to thank all of them for their interest and help.

ALBERT J. BEVERIDGE

CONTENTS

I. DEMOCRACY JUDICIARY 1

The National Capital an unsightly "village in the woods"--
Difficulty and danger of driving through the streets--
Habits of the population--Taverns, shops, and dwellings--
Warring interests--A miniature of the country--Meaning of the
Republican victory of 1800--Anger, chagrin, and despair of
the Federalists--Marshall's views of the political situation--
He begins to strengthen the Supreme Court--The Republican
programme of demolition--Jefferson's fear and hatred of the
National Judiciary--The conduct of the National Judges gives
Jefferson his opportunity--Their arrogance, harshness, and
partisanship--Political charges to grand juries--Arbitrary
application of the common law--Jefferson makes it a political
issue--Rigorous execution of the Sedition Law becomes hateful
to the people--The picturesque and historic trials that made
the National Judiciary unpopular--The trial and conviction
of Matthew Lyon; of Thomas Cooper; of John Fries; of Isaac
Williams; of James T. Callender; of Thomas and Abijah Adams--
Lawyers for Fries and Callender abandon the cases and leave
the court-rooms--The famous Virginia and Kentucky Resolutions
raise the fundamental question as to the power that can
interpret the Constitution--Jefferson plans the assault on
the National Judiciary.

II. THE ASSAULT ON THE JUDICIARY 50

The assault on the Judiciary begins--Intense excitement of
political parties--Message on the Judiciary that Jefferson
sent to Congress--Message he did not send--The Federalists
fear the destruction of the National Judiciary--The grave
defects of the Ellsworth Judiciary Act of 1789--The excellent
Federalist Judiciary Act of 1801--The Republicans determined
to repeal it--The great Judiciary debate begins in the
Senate--The Federalists assert the exclusive power of the
Supreme Court to decide on the constitutionality of acts of
Congress--The dramatic language of Senator Gouverneur
Morris--The Republican Senators evade the issue--The
Federalist Senators press it--Aaron Burr takes his seat
as Vice-President--His fateful Judiciary vote--Senator
John Breckenridge denies the supervisory power of the
Supreme Court over legislation--The debate in the House--
Comments of the press--Extravagant speeches--Appearance
and characteristics of John Randolph of Roanoke--The
Federalists hint resistance--The lamentations of the
Federalist newspapers--The Republicans repeal the
Federalist Judiciary act--They also suspend the sessions
of the Supreme Court for fourteen months--This done to
prevent Marshall from overthrowing the Republican repeal
of the Federalist Judiciary Act of 1801--Marshall proposes
to his colleagues on the bench that they refuse to sit as
Circuit Judges--They reject his proposal--The New England
Federalist leaders begin to talk secession--The jubilation
of the Republican press: "Huzza for the _Washington
Judiciary_!"

III. MARBURY VERSUS MADISON 101

Power of the Judiciary over legislation the supreme issue--
Federalist majorities in State Legislatures assert that
Supreme Court can annul acts of Congress--Republican
minorities vigorously resist the doctrine of Judiciary
supremacy--Republican strength grows rapidly--Critical
situation before the decision of Marbury _vs._ Madison--
Power of the Supreme Court must be promptly asserted or
permanently abandoned--Marshall confronts a serious
dilemma--Escape from it apparently impossible--Republicans
expect him to decide against Madison--They threaten
impeachment--Marshall delivers his celebrated opinion--His
reasoning on the power of the Judiciary merely repeats
Federalist arguments in the Judiciary debate--He persuades
his associates on the Supreme Bench that Section 13 of
the Ellsworth Judiciary Act is unconstitutional--Startling
boldness of his conception--History of Section 13--
Drawn by framers of the Constitution and never before
questioned--Marshall's opinion excites no immediate comment--
Jefferson does not attack it until after his reëlection--
Republican opposition to the Judiciary apparently subsides--
Cause of this--Purchase of Louisiana--Jefferson compelled
to take "unconstitutional" action--He counsels secrecy--
The New England Federalist secession movement gains
strength--Jefferson reëlected--Impeachment the next move.

IV. IMPEACHMENT 157

Republicans plan to subjugate the Judiciary--Federalist
Judges to be ousted and Republicans put in their places--
Marshall's decision in United States _vs._ Fisher--The
Republican impeachment programme carried out--The trial
and the conviction of Judge Addison--The removal of Judge
Pickering--The House impeaches Justice Chase of the Supreme
Court--Republicans manipulate public opinion--The articles
of impeachment--Federalists convinced that Chase is
doomed--Marshall the chief object of attack--His alarm--He
proposes radical method of reviewing decisions of the Supreme
Court--Reason for Marshall's trepidation--The impeachment
trial--Burr presides--He is showered with favors by the
Administration--Appearance of Chase--His brilliant array
of counsel--Luther Martin of Maryland--Examination of
witnesses--Marshall testifies--He makes an unfavorable
impression: "too much caution; too much fear; too much
cunning"--Arguments of counsel--Weakness of the House
managers--They are overwhelmed by counsel for Chase--
Joseph Hopkinson's brilliant appeal--He captivates the
Senate--Nicholson's fatal admission--Rodney's absurd
speech--Luther Martin's great argument--Randolph closes
for the managers--He apostrophizes Marshall--His pathetic
breakdown--The Senate votes--Tense excitement in the
Chamber--Chase acquitted--A determinative event in American
history--Independence of the National Judiciary saved--
Marshall for the first time secure in the office of Chief
Justice.

V. BIOGRAPHER 223

Marshall agrees to write the "Life of Washington"--He is
unequipped for the task--His grotesque estimate of time,
labor, and profits--Jefferson is alarmed--Declares that
Marshall is writing for "electioneering purposes"--Postmasters
as book agents--They take their cue from Jefferson--Rumor
spreads that Marshall's book is to be partisan--Postmasters
take few subscriptions--Parson Weems becomes chief solicitor
for Marshall's book--His amusing canvass--Marshall is
exasperatingly slow--Subscribers are disgusted at delay--
First two volumes appear--Public is dissatisfied--Marshall
is worried--He writes agitated letters--His publisher
becomes disheartened--Marshall resents criticism--The
lamentable inadequacy of the first three volumes--Fourth
volume an improvement--Marshall's heavy task in the writing
of the last volume--He performs it skillfully--Description
of the foundation of political parties--Treatment of the
policies of Washington's administrations--Jefferson calls
Marshall's biography a "five-volume libel" and "a party
diatribe"--He seeks an author to answer Marshall--He
resolves to publish his "Anas" chiefly as a reply to
Marshall--He bitterly attacks him and the biography--
Other criticisms of Marshall's work--His lifelong worry
over the imperfections of the first edition--He decides
to revise it--He devotes nearly twenty years to the task--
Work on the Supreme Bench while writing the first edition.

VI. THE BURR CONSPIRACY 274

Remarkable effect on the Senate of Burr's farewell speech--
His desperate plight--Stanchness of friends--Jefferson's
animosity--Unparalleled combination against Burr--He runs
for Governor of New York and is defeated--Hamilton's lifelong
pursuit of Burr--The historic duel--Dismemberment of the Union
long and generally discussed--Washington's apprehensions in
1784--Jefferson in 1803 approves separation of Western country
"if it be for their good"--The New England secessionists ask
British Minister for support--He promises his aid--Loyalty of
the West--War with Spain imminent--People anxious to "liberate"
Mexico--Invasion of that country Burr's long-cherished dream--
He tries to get money from Great Britain--He promises British
Minister to divide the Republic--His first Western journey--
The people receive him cordially--He is given remarkable
ovation at Nashville--Andrew Jackson's ardent friendship--
Burr enthusiastically welcomed at New Orleans--War with Spain
seemingly inevitable--Burr plans to lead attack upon Mexico
when hostilities begin--Spanish agents start rumors against
him--Eastern papers print sensational stories--Burr returns
to the Capital--Universal demand for war with Spain--Burr
intrigues in Washington--He again starts for the West--
He sends his famous cipher dispatch to Wilkinson--
Blennerhassett joins Burr--They purchase four hundred
thousand acres of land on the Washita River--Plan to
settle this land if war not declared--Wilkinson's eagerness
for war--Burr arraigned in the Kentucky courts--He is
discharged--Cheered by the people--Wilkinson determines to
betray Burr--He writes mysterious letters to the President--
Jefferson issues his Proclamation--Wilkinson's reign of
military lawlessness in New Orleans--Arrest of Burr's agents,
Bollmann and Swartwout--Arrest of Adair--Prisoners sent under
guard by ship to Washington--The capital filled with wild
rumors--Jefferson's slight mention of the Burr conspiracy in
his Annual Message--Congress demands explanation--Jefferson
sends Special Message denouncing Burr: his "guilt is placed
beyond question"--Effect upon the public mind--Burr already
convicted in popular opinion.

VII. THE CAPTURE AND ARRAIGNMENT 343

Bollmann and Swartwout arrive at Washington and are
imprisoned--Adair and Alexander released by the court at
Baltimore for want of proof--Eaton's affidavit against
Burr--Bollmann and Swartwout apply to Supreme Court for
writ of habeas corpus--Senate passes bill suspending the
privilege of that writ--The House indignantly rejects
the Senate Bill--Marshall delivers the first of his series
of opinions on treason--No evidence against Bollmann and
Swartwout, and Marshall discharges them--Violent debate in
the House--Burr, ignorant of all, starts down the Cumberland
and Mississippi with nine boats and a hundred men--First
learns in Mississippi of the proceedings against him--
Voluntarily surrenders to the civil authorities--The
Mississippi grand jury refuses to indict Burr, asserting
that he is guilty of no offense--Court refuses to discharge
him--Wilkinson's frantic efforts to seize or kill him--He
goes into hiding--Court forfeits his bond--He escapes--He is
captured in Alabama and confined to Fort Stoddert--Becomes
popular with both officers and men--Taken under military
guard for a thousand miles through the wilderness--Arrives
at Richmond--Marshall issues warrant for his delivery to the
civil authorities--The first hearing before the Chief
Justice--Shall Burr be committed for treason--The argument--
Marshall's opinion--Probable cause to suspect Burr guilty of
attempt to attack Mexico; no evidence upon which to commit
Burr for treason--Marshall indirectly criticizes Jefferson--
Burr's letters to his daughter--Popular demand for Burr's
conviction and execution--Jefferson writes bitterly of
Marshall--Administration scours country for evidence
against Burr--Expenditure of public money for this purpose--
Burr gains friends in Richmond--His attorneys become devoted
to him--Marshall attends the famous dinner at the house of
John Wickham, not knowing that Burr is to be a guest--He is
denounced for doing so--His state of mind.

VIII. ADMINISTRATION VERSUS COURT 398

Richmond thronged with visitors--Court opens in the House
of Delegates--The hall packed--Dress, appearance, and manner
of spectators--Dangerous state of the public temper--Andrew
Jackson arrives and publicly denounces Jefferson--He declares
trial a "political persecution"--Winfield Scott's opinion:
the President the real prosecutor--Grand jury formed and
instructed--Believe Burr guilty--Burr's passionate reply to
George Hay, the District Attorney--Hay reports to Jefferson--
Burr's counsel denounce the Administration's efforts to
excite the public against him--Attorneys on both sides
speak to the public--Hay moves to commit Burr for treason--
Marshall's difficult and dangerous situation--Jefferson
instructs Hay--Government offers testimony to support
its motion--Luther Martin arrives--Hay again reports to
Jefferson, who showers the District Attorney with orders--
Burr asks that the court grant a writ of subpoena _duces
tecum_ directed to Jefferson--Martin boldly attacks the
President--Wirt's clever rejoinder--Jefferson calls Martin
that "Federal bulldog"--Wants Martin indicted--Marshall's
opinion on Burr's motion for a subpoena _duces tecum_--He
grants the writ--Hay writes Jefferson, who makes able and
dignified reply--Wilkinson arrives--Washington Irving's
description of him--Testimony before the grand jury--Burr
and Blennerhassett indicted for treason and misdemeanor--
Violent altercations between counsel.

IX. WHAT IS TREASON? 470

Burr becomes popular with Richmond society--Swartwout
challenges Wilkinson to a duel--Marshall sets the trial for
August 3--The prisoner's life in the penitentiary--Burr's
letters to his daughter--Marshall asks his associates on the
Supreme Bench for their opinions--Trial begins--Difficulty
of selecting a jury--Everybody convinced of Burr's guilt--
Hay writes Jefferson that Marshall favors Burr--At last
jury is formed--The testimony--No overt act proven--Burr's
counsel move that collateral testimony shall not be
received--Counsel on both sides make powerful and brilliant
arguments--Marshall delivers his famous opinion on the
law of constructive treason--Jury returns verdict of not
guilty--Jefferson declares Marshall is trying to keep
evidence from the public--He directs Hay to press trial
on indictment for misdemeanor--Burr demands letters called
for in the subpoena _duces tecum_ to Jefferson--President
attempts to arrange a truce with the Chief Justice--Hay
despairs of convicting Burr for misdemeanor--Trial on
this charge begins--Many witnesses examined--Prosecution
collapses--Jury returns a verdict of not guilty--Hay moves
to hold Burr and his associates for treason committed in
Ohio--On this motion Marshall throws the door wide open
to all testimony--He delivers his last opinion in the Burr
trials--Refuses to hold Burr for treason, but commits him for
misdemeanor alleged to have been committed in Ohio--Marshall
adjourns court and hurries to the Blue Ridge--He writes Judge
Peters of his situation during the trial--Jefferson denounces
Marshall in Message he prepares for Congress--Cabinet induces
him to strike out the most emphatic language--Marshall
scathingly assailed in the press--The mob at Baltimore--
Marshall is hanged in effigy--The attempt to expel Senator
John Smith of Ohio from the Senate--In his report on Smith
case, John Quincy Adams attacks Marshall's rulings and
opinion in the Burr trials--Grave foreign complications
probably save Marshall from impeachment.

X. FRAUD AND CONTRACT 546

The corrupting of the Georgia Legislature in the winter of
1794-95--The methods of bribery--Prominent men involved--Law
passed selling thirty-five million acres of land for less than
one and one half cents an acre--Land companies pay purchase
price and receive deeds--Merits of the transaction--Poverty of
Georgia and power of the Indians--Invention of the cotton gin
increases land values--Period of mad land speculation--The
origin of the contract clause in the Constitution--Wrath
of the people of Georgia on learning of the corrupt land
legislation--They demand that the venal act be repealed--
James Jackson leads the revolt--A new Legislature elected--
It "rescinds" the land sale law--Records of the transaction
publicly burned--John Randolph visits Georgia--Land companies
sell millions of acres to innocent purchasers--Citizens of
Boston purchase heavily--The news of Georgia's repeal of the
land sale act reaches New England--War of the pamphlets--
Georgia cedes to the Nation her claims to the disputed
domain--Five million acres are reserved to satisfy claimants--
The New England investors petition Congress for relief--
Jefferson's commissioners report in favor of the investors--
John Randolph's furious assault on the relief bill--He attacks
Gideon Granger, Jefferson's Postmaster-General, for lobbying
on the floor of the House--The origin of the suit Fletcher
_vs._ Peck--The nature of this litigation--The case is
taken to the Supreme Court--Marshall delivers his opinion--
Legislation cannot be annulled merely because legislators
voting for it were corrupted--"Great principles of justice
protect innocent purchasers"--The Georgia land sale act,
having been accepted, is a contract--The repeal of that act
by the Georgia Legislature is a violation of the contract
clause of the Constitution--Justice Johnson dissents--He
intimates that Fletcher _vs._ Peck "is a mere feigned case"--
Meaning, purpose, and effect of Marshall's opinion--In
Congress, Randolph and Troup of Georgia mercilessly assail
Marshall and the Supreme Court--The fight for the passage
of a bill to relieve the New England investors is renewed--
Marshall's opinion and the decision of the court influential
in securing the final passage of the measure.