[121] A practicable route for travel and transportation between Virginia and the regions across the mountains had been a favorite project of Washington. The Potomac and James River Company, of which Marshall when a young lawyer had become a stockholder (vol. I, 218, of this work), was organized partly in furtherance of this project. The idea had remained active in the minds of public men in Virginia and was, perhaps, the one subject upon which they substantially agreed.

[122] Much of the course selected by Marshall was adopted in the building of the Chesapeake and Ohio Railway. In 1869, Collis P.

Huntington made a trip of investigation over part of Marshall's route.

(Nelson: _Address--The Chesapeake and Ohio Railway_, 15.)

[123] _Report of the Commissioners appointed to view Certain Rivers within the Commonwealth of Virginia_, 38-39.

[124] Niles: _Weekly Register_, II, 418.

[125] Lowell: _Mr. Madison's War_: by "A New England Farmer."

A still better ill.u.s.tration of Federalist hostility to the war and the Government is found in a letter of Ezekiel Webster to his brother Daniel: "Let gamblers be made to contribute to the support of this war, which was declared by men of no better principles than themselves."

(Ezekiel Webster to Daniel Webster, Oct. 29, 1814, Van Tyne, 53.) Webster here refers to a war tax on playing-cards.

[126] Harper to Lynn, Sept. 25, 1812, Steiner, 584.

[127] See McMaster, IV, 199-200.

[128] Morison: _Otis_, I, 399.

[129] Pickering to Pennington, July 22, 1812, _N.E. Federalism_: Adams, 389.

[130] The vote of Pennsylvania, with those cast for Clinton, would have elected Marshall.

[131] Babc.o.c.k, 157; and see Dewey: _Financial History of the United States_, 133.

[132] For an excellent statement of the conduct of the Federalists at this time see Morison: _Otis_, II, 53-66. "The militia of Ma.s.sachusetts, seventy thousand in enrolment, well-drilled, and well-equipped, was definitely withdrawn from the service of the United States in September, 1814." (Babc.o.c.k, 155.) Connecticut did the same thing. (_Ib._ 156.)

[133] _Annals_, 13th Cong. 1st Sess. 302.

[134] See McMaster, IV, 213-14.

[135] _Annals_, 13th Cong. 1st Sess. 302

[136] _Am. State Papers, For. Rel._ III, 609-12.

[137] The Republican victory was caused by the violent British partisanship of the Federalist leaders. In spite of the distress the people suffered from the Embargo, they could not, for the moment, tolerate Federalist opposition to their own country. (See Adams: _U.S._ V, 215.)

[138] Marshall to Pickering, Dec. 11, 1813, Pickering MSS. Ma.s.s. Hist Soc.

[139] Morison: _Otis_, II, 54-56.

[140] "CURSE THIS GOVERNMENT! I would march at 6 days notice for Washington ... and I would swear upon the _altar_ never to return till Madison was buried under the ruins of the capitol." (Herbert to Webster, April 20, 1813, Van Tyne, 27.)

[141] The Federalists frantically opposed conscription. Daniel Webster, especially, denounced it. "Is this [conscription] ... consistent with the character of a free Government?... No, Sir.... The Const.i.tution is libelled, foully libelled. The people of this country have not established ... such a fabric of despotism....

"Where is it written in the Const.i.tution ... that you may take children from their parents ... & compel them to fight the battles of any war, in which the folly or the wickedness of Government may engage it?... Such an abominable doctrine has no foundation in the Const.i.tution."

Conscription, Webster said, was a gambling device to throw the dice for blood; and it was a "horrible lottery." "May G.o.d, in his compa.s.sion, shield me from ... the enormity of this guilt." (See Webster's speech on the Conscription Bill delivered in the House of Representatives, December 9, 1814, Van Tyne, 56-68; see also Curtis: _Life of Daniel Webster_, I, 138.)

Webster had foretold what he meant to do: "Of course we shall oppose such usurpation." (Webster to his brother, Oct. 30, 1814, Van Tyne, 54.) Again: "The conscription has not come up--if it does it will cause a storm such as was never witnessed here" [in Washington]. (Same to same, Nov. 29, 1814, _ib._ 55.)

[142] See Morison: _Otis_, II, 78-199. Pickering feared that Cabot's moderation would prevent the Hartford Convention from taking extreme measures against the Government. (See Pickering to Lowell, Nov. 7, 1814, _N.E. Federalism_: Adams, 406.)

[143] Some sentences are paraphrases of expressions by Jefferson on the same subject. For example: "I hold the right of expatriation to be inherent in every man by the laws of nature, and incapable of being rightfully taken from him even by the united will of every other person in the nation." (Jefferson to Gallatin, June 26, 1806, _Works_: Ford, X, 273.) Again: "Our particular and separate grievance is only the impressment of our citizens. We must sacrifice the last dollar and drop of blood to rid us of that badge of slavery." (Jefferson to Crawford, Feb. 11, 1815, _ib._ XI, 450-51.) This letter was written at Monticello the very day that the news of peace reached Washington.

[144] Hay: _A Treatise on Expatriation_, 24.

[145] Lowell: _Review of 'A Treatise on Expatriation'_: by "A Ma.s.sachusetts Lawyer."

[146] See vol. III, chap. I, of this work.

[147] See _Review of 'A Treatise on Expatriation_,' 6.

[148] Marshall to Pickering, April 11, 1814, Pickering MSS. Ma.s.s. Hist.

Soc.

[149] See Channing: _Jeff. System_, 170-71.

[150] M'Ilvaine _vs._ c.o.xe's Lessee, 4 Cranch, 209.

[151] Dawson's Lessee _vs._ G.o.dfrey, 4 Cranch, 321.

[152] Case of the Santissima Trinidad _et al._, 1 Brockenbrough, 478-87; and see 7 Wheaton, 283.

[153] Plumer to Livermore, March 4, 1804, Plumer MSS. Lib. Cong.

[154] For example, the British "right" of impressment must be formally and plainly acknowledged in the treaty; an Indian dominion was to be established, and the Indian tribes were to be made parties to the settlements; the free navigation of the Mississippi was to be guaranteed to British vessels; the right of Americans to fish in Canadian waters was to be ended. Demands far more extreme were made by the British press and public. (See McMaster, IV, 260-74; and see especially Morison: _Otis_, II, 171.)

[155] McMaster, IV, 383-88.

CHAPTER II

MARSHALL AND STORY

Either the office was made for the man or the man for the office. (George S. Hillard.)

I am in love with his character, positively in love. (Joseph Story.)

In the midst of these gay circles my mind is carried to my own fireside and to my beloved wife. (Marshall.)

Now the man Moses was very meek, above all the men which were upon the face of the earth. (Numbers XII, 3.)

"It will be difficult to find a character of firmness enough to preserve his independence on the same bench with Marshall."[156] So wrote Thomas Jefferson one year after he had ceased to be President. He was counseling Madison as to the vacancy on the Supreme Bench and one on the district bench at Richmond, in filling both of which he was, for personal reasons, feverishly concerned.