36

CHIEF JUSTICE MARSHALL.

[CHAP. I. the Republicans, and none had expressed that disgust more warmly than Jefferson. Marshall became Secretary of State under John Adams, and stood unflinchingly by the most obnoxious and high-handed measures of his administration, such as the Alien and Sedition Laws, the raising of standing armies, etc. Towards Mr. Jefferson politically, and personally, he entertained the deepest aversion,' and it is but justice to say that these feelings were heartily reciprocated by the latter. Marshall was appointed Chief-Justice about two months before the close of Mr. Adams's Presidential term, and his acceptance of that office and his presiding at the February term of the Supreme Court in 1801, while he still continued to fill the office of Secretary of State(thus doing acts in one capacity, it was said, which he could claim the right to pass upon judicially in another)-did not tend to divest Jefferson and the other Republican leaders of the impression, that while the ermine of the judge continued to cover an acting political officer, it also continued to cover the natural feelings and biases of a partisan.

This was, perhaps, doing him injustice, so far as his intent was concerned. Judge Marshall unquestionably carried to the bench his consolidating views in politics; and he acted on them unhesitatingly throughout his whole judicial career. There were cases where the Republicans of his day accused him of resorting to extraordinary judicial courses, and of travelling out of his path to pronounce obiter dicta' for the purpose of assailing their opinions, and even with no worthier object than of annoying and tendering a quasi defiance to the President of the United States, when the Presidency was filled by Mr. Jefferson.' Judge Marshall's career, taken as a whole, and his stainless private character, render incredible the idea that he ever knowingly and voluntarily allowed mere partisan or personal feelings to influence his action on the bench. He aimed to be an upright and impartial judge. We believe him to have been an earnest and sincere man. His errors, if he committed any, were the errors of his system, and of those unconscious prejudices and feelings from which the most perfect men can, perhaps, never be wholly exempt. He sat on the bench long enough to see his

1 This fact will not be left to unsupported assertion, but distinctly made to appear in the progress of this narrative.

Opinions not called for in the case.

The facts on which these imputations rested, will hereafter appear.

CHAP. I.]

HIS HISTORIC STATEMENTS.

37

own cardinal theory of our Government repudiated by a majority of his associates; and that theory was afterwards, in all its main features, almost wholly swept away. But his earlier judicial decisions came during the fierce struggles of those parties who were contesting inch by inch the very questions he was oftentimes more or less directly passing upon, and, his opponents asserted, stretching his jurisdiction beyond all its constitutional limits to pass upon. Those opponents asserted that the Federalists, beaten and routed in the sovereign body, the people, had taken refuge in the Supreme Court, and that this power, constantly extending its encroachments, was attempting to effect that consolidation which the powerful Federal party had broken itself down in attempting to accomplish. The Republican feeling was therefore strong against Judge Marshall, and no one will doubt that, as a man, he fully repaid that aversion.

During the first pause in the great political struggle-during the administration of Mr. Jefferson-Marshall's Life of Washington made its appearance.' The subject and the circumstances, as already said, gave it peculiar importance. That the author intended it for a faithful and impartial history, we will not doubt. But, notwithstanding its guarded tone of moderation, its seeming judicial tone, its respectful language towards adversaries, no one could then, or can now, fail to see that it was colored throughout by those political opinions and feelings which none complain of in the historian where they are frankly avowed. It is a calm and well argued defence of the Federal party and principles, and a calm, decorously expressed, but none the less earnest and decided, condemnation of the opposite party and its principles. That "great party," that "overwhelming majority" of the people, as he so often termed the Republicans, is almost always placed in the wrong. The wisdom of the few and the folly of the many, are, obviously, ever pressing on the author's mind, and are the text of never-ceasing commentaries or allusions. Unlike Jefferson's theory, that the preceding political contests had been "contests of principle between the advocates of republican and those of kingly government," Marshall's was that the Federalists, as a party, had, on all the great ques

1 It was in preparation during Jefferson's first Presidency, and was expected by the latter to appear pending the canvas when he was reelected. We think, however, no part of it was got ready for publication before 1805.

38

MARSHALL'S TREATMENT OF JEFFERSON

[CHAP. I. tions, acted wisely and well-that they had never desired any stronger form of government than comported with the Constitution, and was necessary to security-that Hamilton's Treasury schemes were just, salutary, and necessary-that the original State Right and Anti-Federal party originated in a desire to avoid the payment of the public debts, a dislike of the restraints indispensable to good order, and in the narrow and unprincipled ambition of local demagogues-that their successors, the Republicans, availing themselves of the same physical elements, embarked in a factious opposition to Hamilton's schemes, and finally to General Washington's administration from the same motives in part, in part from their hostility to England and sympathy with the Jacobin Democracy of France, and perhaps more yet from their anxiety to clutch "the loaves and fishes " of political power. According to Judge Marshall's whole showing, the Federalists were but a quite moderate, truly republican party, and the representations of their opponents to the contrary were but pretences, fabricated by demagogues or mad enthusiasts, and addressed to the passions and prejudices of ignorant mobs.

Towards Jefferson, personally, Judge Marshall's language was most guarded. Admitting his talents and public services, never stooping (like the Callenders, the Sullivans and several later writers) to retail the low calumnies of the day against him, always speaking of his conduct with temper and decorum,' he nevertheless contrives to very often convey the impression that his political, and not unfrequently his personal, course was more or less indefensible. Sometimes circumstances were omitted which Mr. Jefferson's friends have ever claimed were necessary to a true understanding of his conduct. Those friends, too, have always insisted that if Judge Marshall nowhere resorts to direct misstatements, he has sometimes so presented and grouped the facts as to convey totally erroneous impressions. The facts ou which these assertions were put forth will, in several instances, necessarily appear in these volumes. But, waiving these questions for the present, it is at least apparent that he presents Jefferson to the world as the leading spirit of a party whose aims and conduct he so unqualifiedly condemns. He represents party posi

Except in a note to his second edition, replying to personal censures of Jefferson ou his first.

CHAP. I.]

HIS TREATMENT OF JEFFERSON.

39

tions which everybody knows Jefferson ever firmly insisted on as most truthful and important, as the hollow pretences of demagogues; and maxims of political faith, which Jefferson ever acted on as cardinal, as the licentious extravagances of disorganizers.

Nor was there wanting in the work a coloring of what was regarded (we will not now say with what justice) as intended personal offence to Mr. Jefferson. A letter of the latter to an Italian, named Mazzei, had made its appearance in the public prints in 1797, and was seized upon by the Federalists as a topic of party declamation, on the ground that it contained a covert insult to General Washington, for the purpose of ingratiating the writer and his party with the Government of France. Judge Marshall directed attention to this letter in a note, in a manner which vividly recalled to Jefferson's enemies their original impression concerning its object; and though Marshall made no mention of its containing a supposed attack on General Washington, he presented, if not strictly speaking a conclusion resting on that hypothesis, at least, an idea so closely associated with it in the minds of Mr. Jefferson's enemies, that to recall the one was equally, in effect, to recall the other. And this imputation reacted and strengthened another very favorite out-door one of the Federalists, that he had been from an early period, if not always, secretly hostile to General Washington-that while holding a seat in the Cabinet of the latter, he was secretly and sedulously organizing a party against him.

These mortal stabs, as Mr. Jefferson deemed them, at both his reputation as a statesman and a man-these efforts to prove that the "great party " which he had so long led and which carried with it all the sympathies of his heart, was but an organization of demagogues and dupes, and that he was only the greatest. demagogue or dupe in the number-these constant hypotheses which, oarried to their legitimate results and applied to him, would convict him of almost every shade of folly, or unmanly insincerity-nay, these seemingly sanctioning allusions to charges which he regarded as impeaching his personal honor-were probably rendered none the more palatable because they came from a dignified source, because they were clothed in dignified language, and because his assailant assumed many of the ceremonious forms of weighing the testimony and even of occasionally making some liberal concessions, before putting on the

10

HAD JEFFERSON A RIGHT TO DEFEND HIMSELF? [CHAP. I. black cap to pass sentence. Nor was Jefferson's condemnation of the tone and spirit of Judge Marshall's Work much more decided than that of some of the Federalists themselves.'

It was under such circumstances that Jefferson, twenty-five years after writing his Ana, " calmly revised " them, and deliberately bequeathed them to his posterity, to be used as his testimony against Judge Marshall's History. The reader now has the facts, and he will judge for himself how far Mr. Jefferson's conduct in regard to these celebrated papers, deserves the imputations of wanton and unprovoked aggression, of a malignity determined to pass the boundaries of this world and shoot "poisoned arrows" from the grave, and the other tragic and pathetic flights of rhetoric which to the extent of volumes have been inflicted on the Ana. The simple question presented is, had or had not Mr. Jefferson the same right with Judge Marshall to defend himself and his party, to give to the world his

1 John Adams repeatedly alludes with severity to Marshall's Life of Washingtonspeaking of it as a book made to sell in England-an effort to crush all other men with the weight of General Washington's popularity, etc. etc. His idea apparently is, that the effort of Marshall was to appropriate all the popularity of Washington to the Ultra (and Anglo) Federalists, and use it as a sacred weapon against their opponents, which nobody would dare to strike against, even in self-defence.

We cannot believe Judge Marshall had any such view to English popularity as that Mr. Adams imputed to him. If he had, he failed in his object. As a specimen of the severity we think illiberal severity-of treatment his work received in the Edinburgh Review, we will transcribe a paragraph.

From Edinburgh Review, October, 1808.

"We were glad to see, from the title and preface, that Mr. Marshall did not affect to follow that very unsatisfactory and indeed preposterous scheme of biography, which separates a man's private from his public life. This gives us a right to expect, not only an account of his achievements in arms, and his labors as a legislator and statesman, but of those lesser occupations also, those habitudes and distinguishing particulars, which are necessary to a clear view and lively conception of individual character, conduct and demeanor. What, indeed, is biography if it does not do this? and where would be its pretensions to those delightful details which are forbid in the more formal and stately communications of general history? Mr. Chief-Justice Marshall, however, seems to have formed a very different conception of its nature and objects. Though affecting to give a full view of his hero's character and actions, he preserves a most dignified and mortifying silence regarding every particular of his private life and habits; and seems to have thought, that the gravity of his historical functions would have been impaired by anything approaching to familiar and easy description. We cannot, indeed, go quite the length of the amiable and ingenious writer who informs us, that he was grateful for being told Milton wore shoe-buckles; but we do not recollect any book, calling itself the history of a life, more unpardonably deficient in all that constitutes the soul and charm of biography. We are never permitted to see the great man in his private and voluntary occupations in his happier hour'-when relaxed from the cares of policy and war. We look in vain, through these stiff and countless pages, for any sketch or anecdote that might fix a distinguishing feature of private character in the memory. When Chastellux mentions, for example, that Washington broke his own horses, and that he read with peculiar delight the King of Prussia's Instructions and Guibert's Tactics, every one is gratified and instructed; and in omitting such traits, Mr. Marshall may be assured, that he has greatly impaired the interest as well as the utility of his book; that his ungraphic generalities will neither satisfy the curious nor the superficial inquirer into character: and that what seemed to pass with him for dignity, will, by his reader, be pronounced dullness and frigidity."